Champion Performance Products, Inc. v. Express Corporation
Claim Number: FA0804001175539
Complainant is Champion Performance Products, Inc. (“Complainant”), represented by Brad
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <championnutrition.com>, registered with Moniker Online Services, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
17, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 7, 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 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 <championnutrition.com> domain name is identical to Complainant’s CHAMPION NUTRITION mark.
2. Respondent does not have any rights or legitimate interests in the <championnutrition.com> domain name.
3. Respondent registered and used the <championnutrition.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Champion Performance Products, Inc., manufactures sports nutrition products and markets them
to athletes and fitness enthusiasts in over 30 countries. Complainant has operated under the CHAMPION
NUTRITION mark since 1987 (Reg. No. 2,647,807 issued
Respondent registered the <championnutrition.com> domain name on March 29, 2003, and is currently using the disputed domain name to resolve to a website that features a search engine and third-party links and advertisements for Complainant’s direct competitors.
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.
The Panel finds that Complainant’s registration of the CHAMPION NUTRITION mark with the USPTO signifies Complainant’s sufficient 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
domain name includes as its sole feature Complainant’s entire and unaltered
CHAMPION NUTRITION mark, while adding the generic top-level domain (“.com”) as
a suffix. Because the addition of a
generic top-level domain such as “.com” is unequivocally irrelevant to Policy ¶
4(a)(i), the Panel finds that the disputed domain name
is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Snow Fun, Inc. v. O'Connor,
FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name
<termquote.com> is identical to the complainant’s TERMQUOTE mark); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063
(Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the disputed domain name, thus Respondent receives the
responsibility to prove that it does have rights or legitimate interests
according to Policy ¶ 4(a)(ii), because Complainant has successfully set forth
a prima facie case supporting its
allegations. See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Respondent’s disputed domain name diverts Internet users to
a website that only features a search engine and third-party advertisements for
Complainant’s direct competitors.
Respondent presumably receives commercial and monetary benefits from
these advertisements through referral fees.
The Panel therefore finds that Respondent lacks rights and legitimate
interests in the disputed domain name under Policy ¶¶ 4(c)(i)
and (iii) because such use cannot be said to constitute a bona fide offering of goods or services, nor a legitimate
noncommercial or fair use, respectively.
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 Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396
(Nat. Arb. Forum
There is no evidence within the record, including the WHOIS
domain name registration information, by which to conclude that Respondent is
commonly known by the <championnutrition.com>
domain name. The registrant of the
disputed domain name in the WHOIS information is listed as “Express
Corporation,” and there is no evidence of any license belonging to Respondent
to use Complainant’s mark in any fashion.
Therefore, the Panel finds that Respondent lacks rights and legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s domain name is identical to Complainant’s mark,
and its corresponding website prominently displays advertisements to
Complainant’s direct competitors. Aside
from a generic Internet search function, this content remains the substantial
and dominant feature of the disputed domain name’s usage. Therefore, the Panel finds that Respondent
has engaged in bad faith registration and use of the disputed domain name under
Policy ¶ 4(b)(iii), as Respondent primarily intended
to disrupt Complainant’s business. See Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum
Respondent presumably receives commercial and monetary profit from displaying these third-party advertisements on its corresponding website. Respondent’s registration of an identical disputed domain name and subsequent usage of this website has therefore created a substantial likelihood of confusion regarding the source, affiliation, and endorsement of the disputed domain name and corresponding website. Internet users seeking Complainant’s nutrition products would very likely happen upon Respondent’s disputed domain name, given that the only item separating Respondent’s <championnutrition.com> domain name and Complainant’s own <champion-nutrition.com> domain name is a hyphen. To then be confronted with third-party links to Complainant’s direct competitors would surely confound and confuse the diverted Internet user. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv), because Respondent attempted to commercially benefit from such a likelihood of confusion. See H-D Michigan, Inc. v. Petersons 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 Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
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 <championnutrition.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: May 26, 2008
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