3M Company v. INC
Claim Number: FA0803001159751
Complainant is 3M Company (“Complainant”), represented by Richard
A. Kempf, of Moore & Hansen, PLLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <littmann-mexico.com>, registered with Godaddy.com, Inc.
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 March 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 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@littmann-mexico.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 <littmann-mexico.com> domain name is confusingly similar to Complainant’s LITTMANN mark.
2. Respondent does not have any rights or legitimate interests in the <littmann-mexico.com> domain name.
3. Respondent registered and used the <littmann-mexico.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, 3M Company, manufactures and sells a wide
variety of products including products and services associated with the medical
industry. Complainant has used the
LITTMANN mark in connection with its sales of its LITTMANN brand stethoscopes. LITTMANN brand stethoscopes were first sold
in commerce in 1942. Complainant owns
several trademark registrations with the United States Patent and Trademark
Office (i.e. Reg. No. 751,809 issued 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 LITTMANN mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with the USPTO. 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
disputed domain name contains Complainant’s mark, adds the geographic term “
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <littmann-mexico.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). The Panel will nevertheless examine the evidence on record against the applicable Policy ¶ 4(c) elements with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly known by the <littmann-mexico.com> domain name, nor licensed to register domain names using the LITTMANN mark. The Respondent’s WHOIS information provides no evidence that Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant contends that Respondent is using the <littmann-mexico.com> domain name in order to
attract Internet users to the associated website featuring Respondent’s
commercial website. The Panel finds that
intentionally diverting Internet users to a competing website by using a
disputed domain name which is confusingly similar a complainant’s mark is
neither a bona fide offering of goods
and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or
fair use pursuant to Policy ¶ 4(c)(iii).
See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent
to divert Internet users seeking Complainant's website to a website of
Respondent and for Respondent's benefit is not a bona fide offering of goods or
services under Policy ¶ 4(c)(i) and it is not a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Am. Online, Inc. v. Advanced
Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003)
(“Respondent's registration and use of the <gayaol.com> domain name with
the intent to divert Internet users to Respondent's website suggests that
Respondent has no rights to or legitimate interests in the disputed domain name
pursuant to Policy Paragraph 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <littmann-mexico.com> domain name in order to intentionally attract Internet users to its website by creating a likelihood of confusion with Complainant’s LITTMANN mark and operating a commercial website. Pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("While an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion.").
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 <littmann-mexico.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 17, 2008
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