Alticor Inc. v. Khong Gian Mang Co., Ltd c/o Bui Thi Mai
Claim Number: FA0801001140947
Complainant is Alticor Inc. (“Complainant”), represented by Jeffrey
A. Nelson, of Warner Norcross & Judd LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amwayvietnam.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 2008 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 postmaster@amwayvietnam.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <amwayvietnam.com> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <amwayvietnam.com> domain name.
3. Respondent registered and used the <amwayvietnam.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. Complainant was originally founded under the
name “Amway Corporation” in 1959 but changed its name to “Alticor Inc.” in
2000. Complainant distributes personal
care, nutrition and wellness, home care, home living, and commercial products
under the AMWAY mark. Complainant is the
owner of thirty-five active trademark registrations with the United States
Patent and Trademark Office (“USPTO”) including the AMWAY mark (Reg. No.
1,526,319 issued Feb. 28, 1989).
Respondent registered the <amwayvietnam.com>
domain name 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 established rights in the AMWAY mark for
purposes of Policy ¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA
117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
Respondent’s <amwayvietnam.com> domain name is
confusingly similar to Complainant’s mark, as it contains Complainant’s AMWAY
mark in its entirety and simply adds the geographic term “vietnam” and the
generic top-level domain “.com.” The
Panel finds that neither the addition of a common geographic term such as a
country name, nor the addition of the generic top-level domain (“gTLD”) “.com”
sufficiently distinguishes Respondent’s disputed domain name from Complainant’s
mark pursuant to Policy ¶ 4(a)(i). See VeriSign, Inc. v. Tandon,
D2000-1216 (WIPO Nov. 16, 2000) (finding confusing similarity between the
complainant’s VERISIGN mark and the <verisignindia.com> and <verisignindia.net>
domain names where the respondent added the word “
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the <amwayvietnam.com>
domain name. Complainant has established
a prima facie case against
Respondent, and therefore the burden of proof shifts from Complainant to
Respondent to bring forth its evidence of rights and legitimate interests under
Policy ¶ 4(a)(ii).
See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Respondent is not commonly known by the <amwayvietnam.com> domain name. The WHOIS information for the disputed domain
name lists the registrant as “Khong Gian Mang
Co., Ltd c/o Bui Thi Mai.” Complainant has
not licensed the AMWAY mark for Respondent’s use and there is no other evidence
exists that Respondent is commonly known by the <amwayvietnam.com>
domain name. As a result, the Panel
finds that Respondent has not established rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(c)(ii). See
Charles Jourdan Holding AG v. AAIM, D2000-0403
(WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the
respondent is not a licensee of the complainant; (2) the complainant’s prior
rights in the domain name precede the respondent’s registration; (3) the
respondent is not commonly known by the domain name in question); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
Respondent is using the <amwayvietnam.com>
domain name to redirect Internet users to the <bwl.com.sg> domain name
which sells personal care products in direct competition with Complainant’s own
line of products. Respondent’s use is not
a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate
non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of
[Complainant’s] SAFLOK mark to market products that compete with Complainant’s
goods does not constitute a bona fide offering of goods and services.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that
the respondent was not using the domain names for a bona fide offering
of goods or services nor a legitimate noncommercial or fair use because the
respondent used the names to divert Internet users to a website that offered
services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has shown that Respondent is using the <amwayvietnam.com> domain name to connect Internet users to a website offering products that directly compete with Complainant’s own products. The Panel finds such use to be a disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); see also Hewlett Packard Co. v. Full Sys., FA 94637 (Nat. Arb. Forum May 22, 2000) (finding that the respondent registered and used the domain name primarily for the purpose of disrupting the business of the complainant by offering personal e-mail accounts under the domain name <openmail.com> which is identical to the complainant’s services under the OPENMAIL mark).
The Panel finds further that Internet users will likely be confused as to Complainant’s sponsorship of and affiliation with the resulting website. Respondent is seeking to capitalize on this confusion by selling competing personal care products through its resulting website. This use is further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwayvietnam.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 27, 2008
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