Alticor Inc. v. amwayproductinfo.com Private Registration c/o DreamHost Web Hosting
Claim Number: FA0808001220557
Complainant is Alticor Inc. Legal Divisinon
78-2G (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amwayproductinfo.com>, registered with New Dream Network, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 14, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 15, 2008.
On August 20, 2008, New Dream Network, LLC confirmed by e-mail to the National Arbitration Forum that the <amwayproductinfo.com> domain name is registered with New Dream Network, LLC and that Respondent is the current registrant of the name. New Dream Network, LLC has verified that Respondent is bound by the New Dream Network, LLC 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 August 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 15, 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@amwayproductinfo.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 24, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
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 <amwayproductinfo.com> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <amwayproductinfo.com> domain name.
3. Respondent registered and used the <amwayproductinfo.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 has marketed its business, which was previously known as Amway Corporation from 1959 until its name change to Alticor Inc. in 2000, and its associated products under the AMWAY mark for over forty-five years. Complainant holds numerous trademark registrations around the world for the AMWAY mark, including Reg. No. 707,656 issued November 29, 1960 by the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <amwayproductinfo.com>
domain name on December 3, 2007, and uses it to provide information about
Complainant’s products. Through
independent research and direct contact with the registrant of the disputed
domain name, Complainant identified Respondent as “Mr. Gomgom Panngabbean,” who
is a former independent business owner (“IBO”) that contracted with Complainant
to sell its products in
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 evidenced numerous registrations of its AMWAY mark with various trademark authorities around the world, including the USPTO. The Panel finds this evidence sufficient to confer rights in the mark to Complainant pursuant to Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (“Complainant’s numerous registrations for its HONEYWELL mark throughout the world are sufficient to establish Complainant’s rights in the HONEYWELL mark under the Policy ¶ 4(a)(i).”); see also Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Respondent’s <amwayproductinfo.com> domain name contains Complainant’s AMWAY mark in its entirety, and this remains the dominant portion of the disputed domain name. Respondent then adds the generic words “product” and “info” that can describe any business whatsoever, so these two words do not add any distinguishing characteristics to the disputed domain name. Finally, Respondent adds the generic top-level domain (“gTLD”) “.com,” but this addition is irrelevant since all domain names require a top-level domain. This analysis leads the Panel to conclude that Respondent’s <amwayproductinfo.com> domain name is confusingly similar to Complainant’s AMWAY mark pursuant to Policy ¶ 4(a)(i). See Warner Bros. Entm’t Inc. v. Sadler, FA 250236 (Nat. Arb. Forum May 19, 2004) (finding the addition of generic terms to Complainant’s HARRY POTTER mark in the respondent’s <shop4harrypotter.com> and <shopforharrypotter.com> domain names failed to alleviate the confusing similarity between the mark and the domain names); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <amwayproductinfo.com> domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant contends that Respondent is not now and never
has been commonly known by the <amwayproductinfo.com>
domain name. While the WHOIS information
identifies Respondent as “amwayproductinfo.com
Private Registration c/o DreamHost Web Hosting,” Complainant states that
Respondent’s true identity is “Mr. Gomgom Panngabbean,” a former IBO
that contracted with Complainant to sell its products in
Respondent is using the <amwayproductinfo.com>
domain name to provide information about Complainant’s products. As mentioned earlier, Respondent was
previously authorized by contract to sell Complainant’s products, but the
agreement was limited to
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s use of the <amwayproductinfo.com>
domain name is likely to cause confusion among potential customers who may be
confused as to Complainant’s affiliation with or endorsement of Respondent’s
operations. Respondent was only
authorized to sell Complainant’s products in
The Panel also finds that Respondent’s former contractual relationship with Complainant does not preclude a finding of bad faith. On the contrary, Respondent was never authorized by Complainant to register a disputed domain name containing Complainant’s mark. The Panel finds that Respondent’s original registration and continued use of Complainant’s AMWAY mark in the <amwayproductinfo.com> domain name without Respondent’s authorization constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Procter & Gamble Co. v. Hlad, FA 126656 (Nat. Arb. Forum Nov. 20, 2002) (finding that the disputed domain name was registered and used in bad faith where the respondent, a distributor of the complainant’s products who was not a licensee of the complainant, used the complainant’s mark in its domain name, suggesting a broader relationship with the complainant and fostering the inference that the respondent was the creator of the complainant’s products rather than a mere distributor); see also Stanley Logistics, Inc. v. Motherboards.com, FA 128068 (Nat. Arb. Forum Dec. 2, 2002) (finding that the respondent, through the use of the complainant’s mark to redirect Internet users to a website selling the complainant’s product, placed itself without the complainant’s consent in a preferred position with respect to other distributors, which caused consumer confusion and evidenced bad faith registration and use of the domain name).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <amwayproductinfo.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: October 8, 2008
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