Meriter Health Services, Inc. v. Sagamatha LP JJ Monte
Claim Number: FA0804001176767
Complainant is Meriter Health Services Inc. (“Complainant”), represented by Jennifer
R Racine, of Godfrey & Kahn S.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <meriter.mobi>, registered with Go Daddy Software, 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
10, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of April
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 <meriter.mobi> domain name is identical to Complainant’s MERITER mark.
2. Respondent does not have any rights or legitimate interests in the <meriter.mobi> domain name.
3. Respondent registered and used the <meriter.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Meriter Health
Services, Inc., is in the business of providing health care services. Complainant registered its MERITER mark with
the United States Patent and Trademark Office (“USPTO”) on
Respondent, Sagamatha LP JJ
Monte, registered the <meriter.mobi> 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.
The Panel finds that Complainant’s registration with the
USPTO of its MERITER mark establishes sufficient rights in the mark pursuant to
Policy ¶ 4(a)(i).
See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The Panel finds that Respondent’s <meriter.mobi> domain name incorporates Complainant’s
entire MERITER mark and nothing else.
The addition of a generic top-level “.mobi” domain is irrelevant when
evaluating if the disputed domain name is identical. Therefore, the Panel finds that the disputed
domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i). See Vanderbilt Univ. v. U
Inc., FA 893000 (Nat. Arb. Forum Feb.
19, 2007) (finding the <vanderbilt.mobi> domain name to be identical to
the VANDERBILT mark because it did not add anything except the generic
top-level domain “.mobi”); see also Isleworth Land Co. v. Lost in Space,
SA, FA 117330 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
The burden of proof shifts to Respondent after Complainant
initially establishes a prima facie
case that Respondent does not have any rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii). Respondent’s failure to respond furthers the
permissible inferences that can be drawn as to Respondent’s lack of rights and
legitimate interests in the <meriter.mobi>
domain name. The Panel finds that
Complainant has established a prima facie
case but chooses to evaluate the uncontested evidence under Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
The Panel finds that Respondent’s disputed domain name resolves to parked page that offers domain names for sale through GoDaddy.com, which is a use unrelated to Complainant’s mark and is not connected with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where “Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names” and “no commercial use is being made of the names”).
Complainant alleges that Respondent is not licensed or
otherwise authorized to use its MERITER mark.
Respondent’s WHOIS information also does not establish Respondent as
being commonly known by the <meriter.mobi>
domain name. There is no other
information in the evidence that establishes that Respondent is commonly known
by the disputed domain name in connection with a legitimate or fair use. Therefore, the Panel finds that Respondent is
not commonly known by the <meriter.mobi>
domain name under Policy ¶ 4(c)(ii). See 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); 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); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <meriter.mobi> domain name is
unrelated to Complainant’s mark, and may confuse customers as to the potential
affiliation or endorsement of the content posted to the resolving website. This constitutes bad faith registration and
use under Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
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 <meriter.mobi> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: May 20, 2008
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