Alticor Inc. v. HYIP Groups
Claim Number: FA0709001082359
Complainant is Alticor Inc. (“Complainant”), represented by R.
Scott Keller of Warner Norcross & Judd LLP, 900
Fifth Third Center, 111 Lyon Street, N.W., Grand Rapids, MI, 49503. Respondent is HYIP Groups (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amwayinvest.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregis.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically September 27, 2007; the National Arbitration Forum received a hard copy of the Complaint September 28, 2007.
On September 28, 2007, Direct Information Pvt Ltd d/b/a Publicdomainregis confirmed by e-mail to the National Arbitration Forum that the <amwayinvest.com> domain name is registered with Direct Information Pvt Ltd d/b/a Publicdomainregis and that Respondent is the current registrant of the name. Direct Information Pvt Ltd D/B/A Publicdomainregis verified that Respondent is bound by the Direct Information Pvt Ltd d/b/a Publicdomainregis registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 25, 2007, by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 1, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The domain name that Respondent registered, <amwayinvest.com>, is confusingly similar to Complainant’s AMWAY mark.
2. Respondent has no rights to or legitimate interests in the <amwayinvest.com> domain name.
3. Respondent registered and used the <amwayinvest.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor, Inc., is one of the world’s largest direct selling companies. In 2000, the Amway Corporation changed its name to Alticor, Inc. Complainant has marketed products under the AMWAY mark for more than 45 years. Through a network of some 3.6 million independent business owners in 80 countries and territories, Complainant markets a product line of 450 personal care, nutrition and wellness, home care, home living, and commercial products. Complainant also has a subsidiary named “Amway Investment Corp.” Complainant registered the AMWAY mark with the United States Patent and Trademark Office (“USPTO”) April 22, 1960 (Reg. No. 707,656).
Respondent registered the <amwayinvest.com> domain name August 8, 2007. The disputed domain name is being used for commercial gain by offering investing services on Respondent’s website and purports to be “Amway Corp.”
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant registered the AMWAY mark with the USPTO, and has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <amwayinvest.com> domain name is confusingly similar to Complainant’s AMWAY mark under Policy ¶ 4(a)(i). Respondent’s addition of a generic term (“invest”) to Complainant’s mark does not sufficiently distinguish the disputed domain name from Complainant’s mark. In addition, the inclusion of the generic top-level domain (“gTLD”) “.com” also does not set the disputed domain name apart from Complainant’s mark because all domain names are required to have a top-level domain. Therefore, the Panel finds that the disputed domain name is confusingly similar to the AMWAY mark pursuant to Policy ¶ 4(a)(i). See Body Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) (finding that the domain name <bodyshopdigital.com> is confusingly similar to the complainant’s THE BODY SHOP trademark); see also Am. Online, Inc. v. Anytime Online Traffic Sch., FA 146930 (Nat. Arb. Forum Apr. 11, 2003) (finding that the respondent’s domain names, which incorporated the complainant’s entire mark and merely added the descriptive terms “traffic school,” “defensive driving,” and “driver improvement” did not add any distinctive features capable of overcoming a claim of confusing similarity); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . .").
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established rights to and legitimate interests in the mark contained in its entirety within the disputed domain name and urges that Respondent has no such rights or legitimate interests in the <amwayinvest.com> domain name. Complainant has the initial burden of presenting a prima facie case to establish that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant makes this prima facie showing supporting its assertion that Respondent does not have rights or legitimate interests, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has demonstrated that Respondent lacks rights and legitimate interests, and thus has made a prima facie case pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Given Respondent’s failure to answer the Complaint, the Panel is permitted to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). However, the Panel still examines the evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <amwayinvest.com> domain name. The WHOIS information makes no indication that Respondent has been or is currently known by the disputed domain name and the Panel finds that Respondent is not commonly known by the <amwayinvest.com> domain name pursuant to Policy ¶4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Furthermore, Respondent is using the disputed domain name to offer investment services and is attempting to commercially benefit from the similarity between the disputed domain name and Complainant’s mark. Respondent attempts to pass itself off as Complainant’s subsidiary. Such use of a disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(ii). See MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(ii).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Respondent is using the <amwayinvest.com> domain name to attract users to its website offering investment services, likely benefiting from the confusion with Complainant’s mark. Complainant asserts that Respondent uses the disputed domain name for commercial gain by using the name of Complainant’s subsidiary to pass itself off as Complainant’s subsidiary, Amway Corporation. Therefore, Respondent is profiting on the likelihood of confusion with the AMWAY mark and as to Complainant’s affiliation with the disputed domain name. The Panel finds that this evidence supports findings of bad faith registration and use in bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Peterson’s Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwayinvest.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 15, 2007.
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