Medline Industries, Inc. v. LC c/o Li Chow
Claim Number: FA0710001088111
Complainant is Medline Industries, Inc. (“Complainant”), represented by Kristen
S. Knecht, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <medlinepluss.com>, registered with Domain Contender, Llc.
The undersigned certifies that has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On October 3, 2007, Domain Contender, Llc confirmed by e-mail to the National Arbitration Forum that the <medlinepluss.com> domain name is registered with Domain Contender, Llc and that Respondent is the current registrant of the name. Domain Contender, Llc has verified that Respondent is bound by the Domain Contender, Llc registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
8, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
October 29, 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.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has 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. Respondent’s <medlinepluss.com> domain name is confusingly similar to Complainant’s MEDLINE mark.
2. Respondent does not have any rights or legitimate interests in the <medlinepluss.com> domain name.
3. Respondent registered and used the <medlinepluss.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Medline Industires, Inc., is the largest privately held manufacturer and
distributor of healthcare supplies and services in the
domain name was registered on
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 draw such inferences it 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 that Complainant must 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 has sufficiently established its rights in the
MEDLINE mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See
<medlinepluss.com> domain name contains Complainant’s
MEDLINE mark in its entirety followed by a misspelling with the addition of an
“s” to the generic term “plus.” The
disputed domain name also includes the generic top-level domain (“gTLD”)
“.com.” The inclusion of gTLDs and
generic terms do not negate a finding of confusing similarity, and accordingly,
the Panel finds that Respondent’s disputed domain name is confusingly similar
to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar); see also Arthur Guinness Son & Co. (
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <medlinepluss.com> domain name. See VeriSign
Inc. v. VeneSign
Respondent failed to submit a Response to the Complaint. Therefore, the Panel presumes that Respondent has no rights or legitimate interests in the <medlinepluss.com> domain name but will still consider the factors listed under Policy ¶ 4(c) with all of the evidence in the record. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Nowhere in the Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the disputed domain name. Moreover, Respondent has not sought nor has Complainant granted it permission to use the MEDLINE mark in anyway. As such, the Panel finds that Respondent is not commonly known by the <medlinepluss.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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <medlinepluss.com> domain name contains Complainant’s MEDLINE mark in its entirety and redirects Internet users to a website that allegedly is fraudulently purporting to be an online pharmacy where no prescriptions are needed. The offered services if legitimate would be in competition with those services offered under Complainant’s mark. Consequently, the Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark); see also G.D. Searle & Co. v. Mahony, FA 112559 (Nat. Arb. Forum June 12, 2002) (finding the respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from the complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
domain name redirects Internet users to a website purporting to offer services
and products in direct competition with those offered under Complainant’s
mark. The Panel finds that Respondent’s
competing use demonstrates its bad faith registration and use of the <medlinepluss.com> domain name
pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Moreover, Respondent is presumably financially benefiting
from every Internet user redirected to the competing website. As such, the Panel finds additional evidence
of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Qwest Comm’ns Int’l Inc. v.
Ling Shun Shing, FA 187431 (Nat. Arb.
The Panel concludes that Complainant has 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 <medlinepluss.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: November 16, 2007
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