Abbott Laboratories v. Maria Varela
Claim Number: FA0903001251617
Complainant is Abbott Laboratories (“Complainant”), represented by James
F. Struthers, of Richard Law Group, Inc.,
REGISTRAR
The domain name at issue is <abbottlabs.com>, registered with Backslap Domains, Inc.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 6, 2009 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@abbottlabs.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 <abbottlabs.com> domain name is confusingly similar to Complainant’s ABBOTT mark.
2. Respondent does not have any rights or legitimate interests in the <abbottlabs.com> domain name.
3. Respondent registered and used the <abbottlabs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Abbott Laboratories, has registered its ABBOTT mark (Reg. No. 704,356 issued September 13, 1960) with the United States Patent and Trademark Office (“USPTO”). Complainant utilizes its mark in connection with its research and development of medicines, laboratory diagnostics, and other health technologies.
Respondent registered the <abbottlabs.com>
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.
Complainant has submitted evidence of its trademark registration with the USPTO for its ABBOTT mark. The Panel therefore finds that Complainant has sufficient rights in the mark under Policy ¶ 4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Respondent’s <abbottlabs.com>
domain name includes Complainant’s mark while adding the descriptive word
“labs” and the generic top-level domain “.com.”
Neither of these alterations sufficiently distinguishes the domain name
from Complainant’s mark within the meaning of Policy ¶ 4(a)(i). See
Vance Int’l, Inc. v. Abend,
FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term
“security” to the complainant’s VANCE mark, which described the complainant’s
business, the respondent “very significantly increased” the likelihood of
confusion with the complainant’s mark); see
also Trip Network Inc. v.
Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). 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. Complainant must
successfully assert a sufficient prima
facie case supporting its allegations before Respondent must demonstrate
its rights or legitimate interests. The
Panel finds that Complainant has met its burden, and therefore Respondent must
demonstrate its rights or legitimate interests under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
There is no evidence in the record, including the WHOIS
information, to conclude that Respondent is commonly known by the disputed
domain name. Moreover, Complainant
contends that Respondent is not authorized to register or use the disputed
domain name or the ABBOTT mark.
Therefore, the Panel finds that Respondent lacks rights and legitimate
interests under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney,
FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent
was not commonly known by the disputed domain names where the WHOIS
information, as well as all other information in the record, gave no indication
that the respondent was commonly known by the disputed domain names, and the
complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to a website that features third-party advertisements for Complainant’s competitors. The Panel infers that Respondent receives click-through fees from this activity. Therefore, the Panel finds that Respondent has failed to create 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 Bank of Am. Corp. v. Northwest 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iii) by disrupting
Complainant’s business through the provision of competitive third-party
advertisements on the resolving website.
See EBAY, Inc. v.
MEOdesigns, D2000-1368 (WIPO
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iv) by
intentionally creating a likelihood of confusion for commercial gain as to
Complainant’s affiliation with Respondent’s confusingly similar disputed domain
name and corresponding website. See
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 <abbottlabs.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: April 27, 2009
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