Meth Lab Cleanup, LLC v. Michael Rowzee
Claim Number: FA1103001376605
Complainant is Meth Lab Cleanup, LLC (“Complainant”), represented by Bridget H. Labutta of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA. Respondent is Michael Rowzee (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <methlabcleanup.info>, registered with Godaddy.com Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 8, 2011; the National Arbitration Forum received payment on March 8, 2011.
On March 8, 2011, Godaddy.com Inc. confirmed by e-mail to the National Arbitration Forum that the <methlabcleanup.info> domain name is 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 15, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 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@methlabcleanup.info. Also on March 15, 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.
A timely Response was received and determined to be complete on April 1, 2011.
The Complainant submitted a deficient Additional Submission on April 8, 2011.
On April 7, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard Hill as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant alleges that it has registered the trade mark METH LAB CLEANUP for services related to decontamination of illegal clandestine drug laboratories. It promotes those services through its web site at <methlabcleanup.com> since January 2000.
The Complainant states that the Respondent registered the disputed domain name on April 18, 2010 and that that domain name is confusingly similar to its registered mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name because he is not commonly known by that domain name and his use of the web site is not in connection with a bona fide offering of good or service, nor is it fair. The Complainant has not given the Respondent permission to use its mark.
The Complainant alleges that the Respondent is using the disputed domain name to offer hyperlink advertisements for goods and services that are closely related to and confusingly similar to those offered by the Complainant. This is likely to cause consumer confusion as well as to divert consumers from the Complainant’s web site. The web site at the disputed domain name contains hyperlinks that advertise products and services offered by the Complainant’s competitors, and this is likely to disrupt the Complainant’s business.
According to the Complainant, the Respondent is the owner/General Manager of a company that competes with the Complainant, and he is shown as doing business under the trade name “Certified Decontamination” on the list of certified specialists for drug laboratory decontamination published by the State of Utah.
The Complainant states that, in the first quarter of 2010, the parties had some discussions regarding possible collaboration, but those talks broke down. On April 24, 2010, the Respondent sent a threatening E-Mail, signing as “Michael L. Rowzee, General Manager, Certified Decontamination”. Thus it appears that the Respondent registered the disputed domain name in order to redress perceived wrongs and to disrupt the Complainant’s business.
Moreover, according to the Complainant, there is no legitimate business that could ever be promoted in the future using the disputed domain name that does not infringe or otherwise interfere with the Complainant’s trademark rights.
B. Respondent
The Respondent states that he owns the registered service mark WWW.METHLABCLEANUP.INFO and thus has legitimate rights and interests in the disputed domain name.
Further, the Respondent states that he registered the business name WWW.METHLABCLEANUP.INFO with the State of Utah on March 29, 2011, and thus he has legitimate rights and interests in the disputed domain name. That business was registered for the purpose of Internet Publishing and Broadcasting, in particular providing online information website and guide featuring the goods and services of other vendors via the Internet.
The Respondent alleges that the Complainant’s mark does not provide protection for the types of businesses associated with meth lab cleanup including advertising, equipment, chemicals, real estate sales, etc.
The Respondent alleges that "meth lab cleanup" is a very generic terminology. The disputed domain name is consistent with the common manner of identifying a business named Meth Lab Cleanup. Were a person to name their website "I do meth lab cleanup" it would not imply the name of their business is Meth Lab Cleanup. Rather, it would convey that the website is operated by a company with a different name that performs meth lab cleanup work. In the same manner, the disputed domain name describes a website that provides information regarding meth lab cleanup but does not describe a company named Meth Lab Cleanup. Where Complainant has a service mark registration for Meth Lab Cleanup as a company name, other companies are not prohibited by law from stating in other contexts that they perform meth lab cleanup, provide meth lab cleanup products, or provide meth lab cleanup information. It would not be appropriate to prohibit the use of generic terminologies in domain names.
The Respondent continues this allegation, stating that “meth lab cleanup” is a generic "dictionary" terminology and is descriptive of matters other than the name of a business. The generic qualities of the meth lab cleanup terminology with the "info" suffix will obviously be attractive to potential buyers of products and services and will be attractive to manufacturers and service companies willing to pay for advertising.
The Respondent states that he is selling his meth lab cleanup company and will soon manufacture meth lab cleanup products that he will advertise on his website. He thus has a legitimate purpose to own and use the disputed domain name as the domain name of an Internet website for advertising purposes
The Respondent states that the purpose of the web site at the disputed domain name is to provide free information about meth lab cleanup. He obtained a Service Mark registration of the name with the US Patent and Trademark Office, secured the domain name, and registered the business with the Utah Department of Commerce for the purpose of earning a profit by selling advertising space on the website. Products such as decontaminating formulations, cleaning devices and equipment, water and waste extractors, laboratory services, test kits, instruction manuals, specialized vehicles, respirator certification, respirator equipment, personal protective gear, employee decontamination stations, lead-based-paint testing and contractor certifications, lead-testing kits, asbestos testing and contractor certifications, asbestos analysis services, and a host of other products and services are available for meth lab cleanup contractors but there is no central location on the Internet where they may target-advertise except for the Respondent’s forthcoming web site. The provision of an Internet site where companies may purchase advertising does not violate the Complainant's trademark rights and is a legitimate use of the disputed domain name.
The Complainant owns registered trademarks for the mark METH LAB CLEANUP.
The Respondent is active in the same business as the Complainant.
The Respondent registered the disputed domain name immediately after a dispute arose between the parties.
The Respondent is using the disputed domain name to point to a web page containing sponsored advertising links to activities not related to the descriptive nature of the domain name, as well as sponsored advertising links to competitors of the Complainant.
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."
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 Complainant offers two trademark registrations with the United States Patent and Trademark Office (USPTO) for its METH LAB CLEANUP LLC marks. The Complainant’s trademark registrations with the USPTO are sufficient to establish rights in the mark. 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).”); see also 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).
It is clear that the disputed domain name is confusingly similar, in the sense of the Policy, to the Complaint’s mark.
The Respondent correctly notes that the disputed domain name is descriptive, being composed of well-known terms. There is considerable case law under the Policy regarding whether a respondent automatically has rights or legitimate interests in a domain name comprised of a dictionary word.
According to the WIPO overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (available at http://www.wipo.int/amc/en/domains/search/overview2.0/index.html ):
… the respondent may lack a legitimate interest in the domain name, even if it is a domain name comprised of a dictionary word or phrase. Factors a panel tends to look for when assessing whether there may be rights or legitimate interests would include the status and fame of the trademark, whether the respondent has registered other domain names containing dictionary words or phrases, and whether the domain name is used in connection with a purpose relating to its generic or descriptive meaning (e.g., a respondent may well have a right to a domain name "apple" if it uses it for a genuine site for apples but not if the site is aimed at selling computers or MP3 players, for example, or an inappropriate other purpose). Panels have recognized that mere registration of a domain name, even one that is comprised of a confirmed dictionary word or phrase (which may be generic with respect to certain goods or services), may not of itself confer rights or legitimate interests in the domain name. Normally, in order to find rights or legitimate interests in a domain name based on the generic or dictionary meaning of a word or phrase contained therein, the domain name would need to be genuinely used or at least demonstrably intended for such use in connection with the relied-upon meaning (and not, for example, to trade off third-party rights in such word or phrase).
The Respondent puts forth contradictory reasons for his registration of the disputed domain name. He states that (1) he is selling his meth lab cleanup company and will soon manufacture products that he will advertise on his web site; (2) the purpose of the web site at the disputed domain name is to provide free information about meth lab cleanup; and (3) he plans to earn a profit by selling advertising space on the website at the disputed domain name.
From the evidence in the file, it is clear that, at present, the Respondent is indeed using the disputed domain name to point to a web site that contains sponsored links, including to competitors of the Complainant, and that he is receiving click-through revenue from those links.
However, the web site does not contain only links to products and services related to the cleanup of meth laboratories. It also contains links to products and services that have no apparent relation to the activity described by the disputed domain name (for example links to audio equipment, cryogenic equipment, web hosting services, etc.).
Thus the Respondent cannot be held to have rights or legitimate interests in the disputed domain name, because it is being used to promote products and services that are not related to the activity described by the disputed domain name, and it is being used to point to competitors of the Complainant. See Modern Beauty Supplies Inc. v. MDNH, Inc. c/o Bean,FA 975334 (Nat. Arb. Forum June 25, 2007); see also Terroni Inc. v. Gioacchino Zerbo, D2008-0666 (WIPO July 1, 2008); see also Gibson, LLC v. Valencia, D2010-0490 (WIPO May 22, 2010).
As noted above, the Respondent has given contradictory reasons for his registration of the disputed domain name.
The parties had some discussions regarding possible collaboration, but those were ended and a business dispute apparently arose. Shortly after registering the disputed domain name, the Respondent wrote to the Complainant, complaining about statements allegedly made by the Complainant, and requesting that the Complainant cease making such statements.
Considering the actual use made by the Respondent of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith in order to disrupt the Complainant’s business and in order to seek redress for an alleged wrong.
See St Andrews Links Ltd v. Refresh Design, D2009-0601 (WIPO June 22, 2009); see also 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <methlabcleanup.info> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 10, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page