Nature Path, Inc. v. Structural Integrity Corp.
Claim Number: FA0908001279866
Complainant is Nature Path, Inc. (“Complainant”), represented by David
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thetahealingtechnique.com>, registered with GoDaddy.com, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 14, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 24, 2009.
On August 17, 2009, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <thetahealingtechnique.com> domain name are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 15, 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 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.
On September 23, 2009, 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 <thetahealingtechnique.com> domain name is confusingly similar to Complainant’s THETAHEALING mark.
2. Respondent does not have any rights or legitimate interests in the <thetahealingtechnique.com> domain name.
3. Respondent registered and used the <thetahealingtechnique.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant offers healing services, educational
publications, and educational services under the THETAHEALING mark, for which
Complainant has applied for trademark registration with both the Unites States
Patent and Trademark Office (“USPTO”) (Application No. 77,711,951, date
unknown) and the Canadian Intellectual Property Office (“CIPO”) (Application
No. 1,442,202, date unknown).
Complainant alleges that it has used the THETAHEALING mark continuously
in commerce since at least as early as 2000, and that it offers healing and
educational services at its offices in
Respondent registered the <thetahealingtechnique.com> domain name on April 4, 2007. The disputed domain name resolves to a website that features criticisms of Complainant and advertises a competing energy healing methodology.
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.
contends that its trademark applications for the THETAHEALING mark with the USPTO (Application
No. 77,711,951, date unknown) and the CIPO (Application No. 1,442,202, date unknown) establish its rights in the THETAHEALING
mark. The Panel finds that because Complainant does
not yet have actual registrations with either the USPTO, the CIPO, or any other
national trademark authority, Complainant has not established rights in the THETAHEALING
mark through any
trademark registration for the THETAHEALING mark. However,
the Panel notes that Complainant may yet establish common law rights in the
THETAHEALING mark, as Policy ¶ 4(a)(i)
does not require a complainant to hold a registration for a mark with a
governmental authority provided that the respondent can establish secondary meaning
in the mark. See
SeekAmerica Networks Inc.
v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not
require that the complainant's trademark or service mark be registered by a
government authority or agency for such rights to exist); see also
Complainant contends that it has used the THETAHEALING mark in commerce since at least as early as 2000, but it has provided no evidence of such use. Because the Panel has no evidence to support the belief that the THETAHEALING mark is associated in any way with Complainant’s business operations, it finds that the THETAHEALING mark has not acquired secondary meaning. Therefore, The Panel finds that Complainant does not have rights, common law or otherwise, in the THETAHEALING mark pursuant to Policy ¶ 4(a)(i). See Occidental Hoteles Mgmt., S.A., & Corictal II, S.A. v. Hargrave Arts, LLC, FA 959645 (Nat. Arb. Forum May 21, 2007) (finding that the complainant did not submit sufficient evidence showing that its OCCIDENTAL mark had acquired the necessary secondary meaning for it to establish common law rights pursuant to Policy ¶ 4(a)(i)); see also Kip Cashmore v. URLPro, D2004-1023 (WIPO Mar. 14, 2005) (finding no common law rights where the complainant did not present any credible evidence establishing acquired distinctiveness).
The Panel finds that Policy ¶ 4(a)(i) has not been satisfied.
Because the Panel has found that Complainant failed to establish rights in the THETAHEALING mark, the Panel does not need to address arguments under Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty. Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
Because the Panel has found that Complainant failed to establish rights in the THETAHEALING mark, the Panel does not need to address arguments under Policy ¶ 4(a)(iii). See supra.
Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief should be DENIED.
Accordingly, it is Ordered that the <thetahealingtechnique.com> domain name be retained by Respondent.
Louis E. Condon, Panelist
Dated: October 6, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum