Nature's Sunshine Products, Inc. v. Nadeem Qadir
Claim Number: FA1003001314890
Complainant is Nature's Sunshine Products, Inc. (“Complainant”), represented by Michael
E. Mangelson,
REGISTRAR
The domain name at issue is <naturesunshine.com>, registered with Enom, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 31, 2010, the
Forum served the Complaint and all Annexes, including a Written Notice of the
Complaint, setting a deadline of April 20, 2010 by which Respondent could file
a Response to the Complaint, via e-mail to all entities and persons listed on
Respondent’s registration as technical, administrative, and billing contacts,
and to postmaster@naturesunshine.com by email.
Also on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On Bruce E. Meyerson, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <naturesunshine.com> domain name is confusingly similar to Complainant’s NATURE’S SUNSHINE mark.
2. Respondent does not have any rights or legitimate interests in the <naturesunshine.com> domain name.
3. Respondent registered and used the <naturesunshine.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Nature’s Sunshine Products, Inc., is the marketer and producer of vitamins, minerals, nutritional supplements, herbs and herbal dietary supplements, beverages, beauty care products and clear cleaning products under its NATURE’S SUNSHINE mark. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its NATURE’S SUNSHINE mark (e.g. Reg. No. 1,105,438 issued on Nov. 7, 1978), as well as multiple trademark registrations with other governmental trademark authorities worldwide.
Respondent, Nadeem Qadir, registered the <naturesunshine.com> domain name on
Complainant
offers evidence that Respondent has a history of registering domain names that
infringe upon the trademark rights of others and has been ordered by previous
UDRP panels to transfer the disputed domain names to the respective
complainants. E.g., Morningstar, Inc. v. Qadir, FA 1303922
(Nat. Arb. Forum
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 has established rights in the NATURE’S SUNSHINE mark pursuant to Policy ¶ 4(a)(i) through its trademark registrations with the USPTO (e.g. Reg. No. 1,105,438 issued on Nov. 7, 1978), and registrations with other governmental trademark authorities worldwide. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant argues that the <naturesunshine.com> domain name is confusingly similar
to its NATURE’S SUNSHINE mark.
Complainant notes that the differences between the disputed domain name
and Complainant’s mark are (1) the apostrophe and letter “s” have
been deleted from the “nature’s” portion of the mark, (2) the space between the
words of the mark have been removed, and (3) the generic top-level domain
(“gTLD”) “.com” has been added. Despite
these differences, the Panel finds that Respondent’s disputed domain name is
confusingly similar to Complainant’s NATURE’S SUNSHINE mark under Policy ¶ 4(a)(i). See LOreal USA Creative Inc v. Syncopate.com
– Smart Names for Startups, FA 203944 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisifed.
Complainant alleges that Respondent does not have any rights
or legitimate interests in the <naturesunshine.com>
domain name. Complainant is required to
make a prima facie case in support of
these allegations. After Complainant has
produced a prima facie case the
burden of proof shifts to Respondent to show that it possesses rights or
legitimate interests in the disputed domain name. See Intel
Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006)
(finding the “complainant must first make a prima facie case that [the]
respondent lacks rights and legitimate interests in the disputed domain names
under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show
it does have rights or legitimate interests.”); see also Domtar, Inc. v.
Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well
established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts
to respondent to show that it does have rights or legitimate interests pursuant
to paragraph 4(a)(ii) of the Policy.”).
The Panel finds that the Complainant has produced a prima facie case. Due to the
Respondent’s failure to respond to these proceedings, the Panel may assume
Respondent does not have any rights or legitimate interests in the disputed
domain name. The Panel, however, will
examine the record to determine whether Respondent possesses rights or
legitimate interests in the <naturesunshine.com>
domain name pursuant to Policy ¶ 4(c). See American Express Co. v. Fang
Suhendro, FA 129120 (Nat.
Arb. Forum
Complaint argues that Respondent is neither commonly known by the disputed domain name, nor has Complainant given Respondent permission to use Complainant’s mark. The WHOIS information identifies “Nadeem Qadir” as the registrant of the <naturesunshine.com> domain name, and there is no further evidence on record that Respondent is commonly known by the disputed domain name. The Panel finds that without affirmative evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant further contends that Respondent’s use of the disputed domain name is further evidence of Respondent’s lack of rights or legitimate interests in the <naturesunshine.com> domain name. Respondent’s disputed domain name redirects Internet users to the parked <useek.com> website, which displays advertisments and third-party links to Complainant’s competitors in the herbal supplement and vitamin business. The Panel finds that such use by Respondent is not in connection 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 Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Charles Letts & Co Ltd. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s parking of a domain name containing the complainant’s mark for the respondent’s commercial gain did not satisfy Policy ¶ 4(c)(i) or ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s repeated engagement
in cybersquatting is evidence of bad faith registration and use. Complainant references past UDRP decisions
against Respondent as evidence of a pattern of bad faith registration of domain
names of well-known parties. E.g., Morningstar, Inc. v. Qadir, FA 1303922 (Nat. Arb.
Forum
Complainant further contends that
Respondent’s use of the confusingly similar disputed domain name to redirect
Internet users to the competitors of Complainant is further evidence of bad
faith registration and use. Complainant
contends that the confusion causes Internet users seeking Complainant’s
products to be diverted to the products of other competing businesses resulting
in a loss and disruption of business to Complainant. The Panel agrees and finds that Respondent’s
use of the disputed domain name is evidence of an intentional disruption in
Complainant’s business, and is further evidence of bad faith registration and
use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v.
Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the
use of a confusingly similar domain name to attract Internet users to a
directory website containing commercial links to the websites of a
complainant’s competitors represents bad faith registration and use under
Policy ¶ 4(b)(iii)); see also
Lastly, Complainant argues that Respondent’s use of the confusingly similar <naturesunshine.com> domain name to redirect Internet users to a third-party link directory at the third-party domain name <useek.com>, where Respondent presumably collects referral fees is further evidence of bad faith registration and use. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to a website displaying third-party links to the competitors of Complainant for commercial gain is further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites).
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 <naturesunshine.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 30, 2010
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