Jon Barron and Kristen Barron v.
Claim Number: FA0809001226417
PARTIES
Complainant is Jon Barron and Kristen
Barron (“Complainant”), represented
by Diane M. Reed, of Knobbe Martens Olson & Bear LLP,
California, USA. Respondent is Texas
International Property Associates - NA NA (“Respondent”), represented by Gary Wayne Tucker, of Law Office of Gary Wayne Tucker,
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <baselinenutritional.com>, registered with Compana, LLC.
PANEL
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.
Dennis A. Foster as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 25, 2008; the National Arbitration Forum received a hard copy of the Complaint on September 26, 2008.
On September 29, 2008, Compana, LLC confirmed by e-mail to the National Arbitration Forum that the <baselinenutritional.com> domain name is registered with Compana, LLC and that the Respondent is the current registrant of the name. Compana, LLC has verified that Respondent is bound by the Compana, 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 October 2, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 22, 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@baselinenutritional.com by e-mail.
A deficient Response was received on October 23, 2008. It was not in compliance with ICANN Rule 5 because it was received late, more than twenty days after the date of commencement of this administrative proceeding. However, since the Respondent in the Response consented to a transfer of the disputed domain to the Complainant, the Panel did take the Response into consideration.
On
October 30, 2009, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the
National Arbitration Forum appointed Dennis A. Foster as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
- Complainant began selling dietary and nutritional supplements under the trademark BASELINE NUTRITIONALS in May 2003. Complainant has spent considerable sums of money to promote and market its products worldwide over the last five years. Complainant has also registered the domain name <baselinenutritionals.com> in its efforts. As a result, the public has come to identify Complainant’s trademark with its products.
- Complainant secured a United States Patent and Trademark Office (“USPTO”) registration for its trademark BASELINE NUTRITIONALS prior to registration of the disputed domain name.
- The disputed domain name, <baselinenutritional.com>, is confusingly similar to Complainant’s trademark because the only differences are the omission of an ending letter “s” and the addition of a gTLD, which are insignificant distinctions.
- Respondent has no rights or legitimate interests in the disputed domain name. The name is used to host a web site that directs internet users to third party web sites that offer products that compete direct with those sold by Complainant, a use which is not a bona fide offering of goods and services as referred to under the Policy. Respondent is not commonly known by the disputed domain name. As Respondent derives revenue from the disputed domain name, Respondent is not using that name in a legitimate noncommercial manner or making fair use of the same.
- Respondent registered and is using the disputed domain name in bad faith. Respondent derives commercial gain by using the domain name to lure internet users who seek the Complainant to Respondent’s own web site. Furthermore, Respondent is deliberately using the disputed domain name to disrupt Complainant’s business. Respondent had at least constructive notice of Complainant’s mark and has engaged in bad faith typosquatting, consistent with Respondent’s pattern of past illegitimate domain name registration
- Respondent has failed to respond to an e-mail from Complainant that requested a transfer of the disputed domain name.
B. Respondent
- While not accepting that it has violated the requirements of the Policy with respect to the legitimacy of its ownership of the disputed domain name, Respondent agrees to the immediate transfer of the name to Complainant.
FINDINGS
Complainant has used the trademark, BASELINE NUTRITIONALS, in connection with the sale of dietary and nutritional supplements since 2003 and owns a valid USPTO registration (Registration No. 2,874, 630; August 17, 2004) for that mark
Respondent is the owner of the disputed domain name, <baselinenutritional.com>, and the date of registration is December 6, 2005.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
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;
(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.
Complainant has
established clearly that it has a legitimate interest in the disputed domain
name. Respondent has agreed to an
immediate transfer of that name to Complainant.
As a result, there is no need for the Panel, in rendering its decision,
to engage in a full analysis to determine compliance with all of the elements
required under the Policy. Thus, in
accordance with the wishes of both parties and in the interest of judicial
economy, the Panel concludes that the disputed domain name should be so transferred. See Cartoon Network LP, LLLP v. Morgan, D2005-1132 (WIPO Jan. 5, 2006); see also Citigroup Inc. v.
DECISION
Having established that Complainant has a legitimate interest in the disputed domain name and that Respondent consents to the requested relief, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <baselinenutritional.com> domain name be TRANSFERRED from Respondent to Complainant.
Dennis A. Foster,
Panelist
Dated: November 13, 2008
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