Wellness International Network, Ltd. V. Leza Mesiah a/k/a wellnessopportunitiesgroup.com
Claim Number: FA0205000114303
Complainant is Wellness International Network Ltd., Plano, TX (“Complainant”) represented by Dana M. Campbell, of Owens, Clary & Aiken, L.L.P. Respondent is Leza Mesiah a/k/a wellnessopportunitiesgroup.com, Dallas, TX (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wellnessinternationalnetwork.org>, registered with Alldomains.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.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 17, 2002; the Forum received a hard copy of the Complaint on May 17, 2002.
On May 17, 2002, Alldomains.com confirmed by e-mail to the Forum that the domain name <wellnessinternationalnetwork.org> is registered with Alldomains.com and that Respondent is the current registrant of the name. Alldomains.com has verified that Respondent is bound by the Alldomains.com 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”).
On May 21, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 10, 2002 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, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Crary as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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.
The <wellnessinternationalnetwork.org> domain name is confusingly similar to Complainant’s WELLNESS INTERTIONAL NETWORK, LTD. mark.
Respondent has no rights or legitimate interests in the <wellnessinternationalnetwork.org> domain name.
Respondent registered and used the <wellnessinternationalnetwork.org> domain name in bad faith.
Respondent did not submit a Response.
Complainant owns a registered trademark, registered with the United States Patent and Trademark Office, for WELLNESS INTERTIONAL NETWORK, LTD. (Reg. No. 2,290,737). Complainant uses its WELLNESS INTERTIONAL NETWORK, LTD. mark in association with printed matter, including business forms, product brochures, product catalogs and health, nutrition and personal education pamphlets. Complainant is in the business of selling health and nutrition products.
Respondent registered the <wellnessinternationalnetwork.org> domain name on March 2, 2001. Respondent has failed to make an active use of the domain name. Following a request to transfer the domain name to Complainant, Respondent notified Complainant that it may be bought “at a PREMIUM price.”
Complainant never authorized or licensed Respondent to use its WELLNESS INTERTIONAL NETWORK, LTD. mark. Respondent, however, is an independent distributor of Complainant, who sells nutritional products manufacturer and distributed by Complainant. Nonetheless, Respondent’s distribution agreement with Complainant expressly prohibits the use of Complainant’s mark.
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 the 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.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the 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.
Identical and/or Confusingly Similar
Complainant has established its rights to the WELLNESS INTERTIONAL NETWORK, LTD. mark through registration with the United States Patent and Trademark Office and subsequent continuous use.
Respondent incorporates Complainant’s entire mark in its <wellnessinternationalnetwork.org> domain name minus the mark’s “LTD” suffix. Respondent’s domain name maintains the essence of Complainant’s mark because the “LTD” suffix merely refers to Complainant’s business status. Since Respondent’s domain name contains the core of Complainant’s mark, consumers are likely to be confused and believe they are doing business with Complainant. Thus, Respondent’s domain name is not distinguishable from Complainant’s WELLNESS INTERTIONAL NETWORK, LTD. mark. See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding the domain name <mannbrothers.com> confusingly similar to Complainant’s MANN BROTHERS mark “so as to likely confuse Internet users who may believe they are doing business with Complainant or with an entity whose services are endorsed by, sponsored by, or affiliated with Complainant; hence, satisfying the confusing similarity requirement”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has established its rights in the WELLNESS INTERTIONAL NETWORK, LTD. mark. Because Respondent has not submitted a Response in this proceeding, the Panel may presume Respondent has no such rights or interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Furthermore, when Respondent fails to submit a Response, the Panel is permitted to make all inferences in favor of Complainant. See Vertical Solutions Mgmt., Inc. v. Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent has made no active use of the <wellnessinternationalnetwork.org> domain name. Respondent, however, has offered to sell it to Complainant “at a PREMIUM price.” Respondent’s lack of active use and affirmative offer to sell the domain name to Complainant does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor does it establish rights and legitimate interests in the domain name pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where Respondent failed to submit a Response to the Complaint and had made no use of the domain name in question); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); see also J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the websites that are located at the domain names at issue, other than to sell the domain names for profit); see also Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the Respondent registered the domain name with the intention of selling the domain name).
Respondent is a independent distributor of Complainant but was explicitly, per the distribution agreement, not authorized or licensed to use the WELLNESS INTERTIONAL NETWORK, LTD. mark. Respondent is known by this Panel as Leza Messiah or alternatively as wellnessopportunitiesgroup.com. Respondent is not commonly known as WELLNESS INTERNATIONAL NETWORK or <wellnessinternationalnetwork.org>. Therefore, Respondent has not met the requirements of Policy ¶ 4(c)(ii). See Strojirny v. Rautiainen, D2000-1394 (WIPO Dec. 20, 2000) (finding that Respondent has no rights or legitimate interests in the domain name where Respondent is not commonly known by the distinct ADAST mark and has made no use of the domain name in question); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name, thus, Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent had knowledge of Complainant’s rights in the WELLNESS INTERTIONAL NETWORK, LTD. mark because Respondent registered the domain after becoming an independent distributor of Complainant. Through the independent distributor contract, Respondent had notice that use of Complainant’s mark was strictly prohibited. Therefore, Respondent’s subsequent registration of the <wellnessinternationalnetwork.org> domain name constitutes bad faith registration. See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that ICQ mark is so obviously connected with Complainant and its products that the use of the domain names by Respondent, who has no connection with Complainant, suggests opportunistic bad faith); see also Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (“Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner… Respondent, if he ever was serious in the registration of this domain name, must have relied on the good chance he would attract [Complainant’s] customers”).
Furthermore, Respondent acted in bad faith by not using the <wellnessinternationalnetwork.org> domain name other than attempting to sell it to Complainant “at a PREMIUM price.” It can be presumed that “a PREMIUM price” is greater than Respondent’s out-of-pocket cost. Hence, Respondent’s actions constitute bad faith use pursuant to Policy ¶ 4(b)(i). See Grundfos A/S v. Lokale, D2000-1347 (WIPO Nov. 27, 2000) (finding that a failure to use the domain name in any context other than to offer it for sale to Complainant amounts to a use of the domain name in bad faith); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).
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 the requested relief should be hereby GRANTED.
Accordingly, it is Ordered that the <wellnessinternationalnetwork.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: July 5, 2002
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