Strength of Nature, LLC v. Andrew Sievright andrew@domainsource.com / Domain Source
Claim Number: FA1102001374507
Complainant is Strength of Nature, LLC (“Complainant”), represented by Nathan C. Belzer of Belzer PC, Georgia, USA. Respondent is Andrew Sievright andrew@domainsource.com / Domain Source (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <megagrowth.com>, registered with Moniker Online Services, 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 February 23, 2011; the National Arbitration Forum received payment on February 23, 2011.
On February 25, 2011, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <megagrowth.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 28, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2011 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@megagrowth.com. Also on February 28, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 22, 2011, 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 (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <megagrowth.com> domain name is identical to Complainant’s MEGA GROWTH mark.
2. Respondent does not have any rights or legitimate interests in the <megagrowth.com> domain name.
3. Respondent registered and used the <megagrowth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses its MEGA GROWTH mark in connection with hair care products. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its MEGA GROWTH mark (Reg. No. 3,028,183; filed October 11, 2004; issued December 13, 2005).
Respondent registered the <megagrowth.com> domain name on September 4, 2002. The disputed domain name resolves to a website that features third-party hyperlinks, from which Respondent presumably receives click-through fees. Respondent has offered to sell the disputed domain name to Complainant for $20,000.
Respondent has been a respondent in previous UDRP proceedings in which Respondent has been ordered to transfer domain names to the respective complainants. E.g., Apple Inc. v. Andrew Sievright, Domain Source, D2010-1916 (WIPO Aug. 12, 2010); Iweb Group, Inc. v. Domain Source, D2008-0819 (WIPO July 28, 2008); Betty Ford Ctr. at Eisenhower v. Domain Source, Inc., D2007-0901 (WIPO Aug. 23, 2007); GMC, Inc. v. DomainSource.com, Inc., D2006-1388 (WIPO Dec. 28, 2006); Rhino Entm’t Co. v. DomainSource.com, Inc., D2006-0968 (WIPO Oct. 18, 2006); Popular Enters., LLC v. DomainSource.com, Inc., FA 781931 (Nat. Arb. Forum Oct. 2, 2006).
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.
As Complainant holds a trademark registration with the USPTO for its MEGA GROWTH mark (Reg. No. 3,028,183; filed October 11, 2004; issued December 13, 2005), the Panel finds Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant alleges that it began to offer its MEGA GROWTH hair care products in July of 2000. Complainant’s trademark registration with the USPTO (Reg. No. 3,028,183; filed October 11, 2004; issued December 13, 2005) lists July 1, 2000 as the date of first use of the mark. Complainant argues that it has continuously utilized its MEGA GROWTH mark since that time. Complainant contends that it sells its MEGA GROWTH products worldwide in beauty supply stores and other retail outlets under the brand name PROFECTIV. Complainant avers that it has publicized its MEGA GROWTH mark and has advertised the mark in connection with its beauty products. The Panel determines Complainant has provided sufficient evidence that the MEGA GROWTH mark has established secondary meaning. Therefore, the Panel concludes that Complainant has established rights in the MEGA GROWTH mark under Policy ¶ 4(a)(i), dating back to July 1, 2000. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Kahn Dev. Co. v. RealtyPROshop.com, FA 568350 (Nat. Arb. Forum June 23, 2006) (holding that the complainant’s VILLAGE AT SANDHILL mark acquired secondary meaning among local consumers sufficient to establish common law rights where the complainant had been continuously and extensively promoting a real estate development under the mark for several years).
Respondent’s <megagrowth.com> domain name contains Complainant’s entire MEGA GROWTH mark and only removes the space separating the terms and adds the generic top-level domain (‘gTLD”) “.com.” The Panel finds these distinctions do not alter the disputed domain name significantly; therefore the Panel finds that Respondent’s <megagrowth.com> domain name is confusingly similar to Complainant’s MEGAGROWTH mark pursuant to Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the space between terms of a mark still rendered the <gwbakeries.mobi> domain name identical to the complainant’s GW BAKERIES mark).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <megagrowth.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the <megagrowth.com> domain name. Complainant argues that Respondent is not licensed or otherwise authorized to use Complainant’s MEGA GROWTH mark. The WHOIS information lists the registrant of the <megagrowth.com> domain name as “Andrew Sievright andrew@domainsource.com / Domain Source,” which the Panel finds is not similar to the disputed domain name. As Respondent has not replied to the Complaint, there is no evidence in the record that would indicate Respondent is commonly known by the <megagrowth.com> domain name. Therefore, the Panel determines Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent uses the <megagrowth.com> domain name to resolve to a website that features hyperlinks which resolve to third-party websites. Complainant has not provided any screen shots of the website resolving from the domain name and does not allege that the third-parties are competitors, so the Panel will proceed as if the third-parties are unrelated to Complainant. As Respondent likely receives click-through fees from the hyperlinks, the Panel determines that Respondent’s use of the <megagrowth.com> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Prior to the origination of this proceeding, Complainant first offered to purchase the <megagrowth.com> domain name from Respondent. Respondent offered to sell the <megagrowth.com> domain name to Complainant for $20,000 and asked Complainant to counter-offer. Complainant offered Respondent $1,500, which exceeded Respondent’s out-of-pocket costs to register and maintain the disputed domain name. Respondent refused Complainant’s offer and continued to require $20,000 for the domain name. The Panel finds that Respondent’s offer to sell the disputed domain name for more than Respondent’s out-of-pocket costs is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“An attempt by a respondent to sell a domain name to a complainant who owns a trademark with which the domain name is confusingly similar for an amount in excess of out-of-pocket costs has been held to demonstrate a lack of legitimate rights or interests.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
As noted above, Respondent has offered to sell the <megagrowth.com> domain name to Complainant for $20,000, which exceeds Respondent’s out-of-pocket expenses. The Panel concludes that Respondent’s offer to sell for such an amount is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name); see also Campmor, Inc. v. GearPro.com, FA 197972 (Nat. Arb. Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”).
Respondent has been involved in numerous previous UDRP proceedings in which Respondent has been ordered to transfer domain names to the respective complainants. E.g., Apple Inc. v. Andrew Sievright, Domain Source, D2010-1916 (WIPO Aug. 12, 2010); Iweb Group, Inc. v. Domain Source, D2008-0819 (WIPO July 28, 2008); Betty Ford Ctr. at Eisenhower v. Domain Source, Inc., D2007-0901 (WIPO Aug. 23, 2007); GMC, Inc. v. DomainSource.com, Inc., D2006-1388 (WIPO Dec. 28, 2006); Rhino Entm’t Co. v. DomainSource.com, Inc., D2006-0968 (WIPO Oct. 18, 2006); Popular Enters., LLC v. DomainSource.com, Inc., FA 781931 (Nat. Arb. Forum Oct. 2, 2006). The Panel finds these prior proceedings to be strong evidence that Respondent has registered, and uses, the <megagrowth.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also National Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting).
Respondent receives click-through fees from the hyperlinks found on the website resolving from the <megagrowth.com> domain name. By receiving a fee each time an Internet user clicks on one of the hyperlinks, Respondent profits from increased traffic on its website. Respondent uses the identical <megagrowth.com> domain name to attract Internet users interested in Complainant and Complainant’s hair care products to Respondent’s website. The Panel finds Respondent is using the disputed domain name to attract Internet users for commercial gain by creating confusion as to Complainant’s affiliation with the disputed domain name, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTEDD.
Accordingly, it is Ordered that the <megagrowth.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 29, 2011
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