Alticor Inc. v. Alla Voblikova
Claim Number: FA1107001397645
Complainant is Alticor Inc (“Complainant”), represented by R. Scott Keller of Warner Norcross & Judd LLP, Michigan, USA. Respondent is Alla Voblikova (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allaamway.biz>, registered with Internet.bs Corp.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 7, 2011; the National Arbitration Forum received payment on July 8, 2011.
On July 8, 2011, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <allaamway.biz> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 July 11, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 1, 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@allaamway.biz. Also on July 11, 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 August 5, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <allaamway.biz> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <allaamway.biz> domain name.
3. Respondent registered and used the <allaamway.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor, Inc., is a large global provider of a wide variety of all types of products, including personal care, home care, home living, and commercial products. Complainant owns over 2000 trademark registrations worldwide containing the AMWAY mark, including many with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 707,656 registered November 29, 1960). Complainant uses the mark to support its business through the sale of AMWAY branded products.
Respondent, Alla Voblikova, registered the disputed domain name on January 19, 2011. The disputed domain name resolves to a site which mimics Complainant’s own primary website in an attempt to pass itself off as 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."
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 is asserting its rights in the AMWAY mark based on the contention that registering the mark with federal trademark authorities, the USPTO for example, satisfies Policy ¶ 4(a)(i). Complainant failed to provide any evidence other than the bear assertion that it holds trademark registrations for the AMWAY mark outside the United States. However, Complainant has provided this Panel with sufficient evidence indicating that the mark is duly registered with the USPTO; therefore, the Panel finds that Complainant has established its rights in the AMWAY mark under Policy ¶ 4(a)(i) by registering the mark with the USPTO (e.g., Reg. No. 707,656 registered November 29, 1960). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant claims that Respondent’s disputed domain name is confusingly similar to its AMWAY mark. The disputed domain name includes the entire make while adding Respondent’s first name “alla” and the generic top-level domain (“gTLD”) “.biz.” The Panel finds that the additions of the term “alla” and a gTLD do not sufficiently differentiate Respondent’s disputed domain name from Complainant’s AMWAY mark making the two confusingly similar under Policy ¶ 4(a)(i) because the distinctive element of the disputed domain name remains, the AMWAY mark. See Reichert, Inc. v. Leonard, FA 672010 (Nat. Arb. Forum May 24, 2006) (“The disputed domain names are identical to Complainant’s mark, but for the addition of a generic top-level domain suffix (“.com” or “.net”)…”); see also Quixtar Inv., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that because the domain name <quixtar-sign-up.com> incorporates in its entirety the complainant’s distinctive mark, QUIXTAR, the domain name is confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been established.
The Panel finds that Complainant has met its prima facie burden under Policy ¶ 4(a)(ii) which then shifts the burden of proof to Respondent who now must prove that it has rights or legitimate interests in the disputed domain name. See 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.”). Respondent failed to file a Response in this matter which allows the Panel to assume it lacks rights or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). However, the Panel will still examine the entire record before making a determination regarding Respondent’s rights or legitimate interests in the disputed domain name according to the factors listed in Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name. The WHOIS information appears to indicate that Respondent may be commonly known by the disputed domain name as the registrant is identified as “Alla Voblikova.” Without further evidence to support such a finding, the Panel determines that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Nature’s Path Foods Inc. v. Natures Path, Inc., FA 237452 (Nat. Arb. Forum Apr. 2, 2004) (“In its WHOIS contact information, Respondent lists its name and its administrative contact as ‘Natures Path, Inc.’ However, since Respondent failed to respond to the Complaint, there has not been any affirmative evidence provided to the Panel showing that Respondent was commonly known by the disputed domain name prior to its registration of the domain name.”); see also Gestmusic Endemol, S.A. v. operaciontriunfo.us, FA 214337 (Nat. Arb. Forum Jan. 14, 2004) (“Though Respondent’s WHOIS information lists Respondent’s name as ‘o. operaciontriunfo.us’ and organization as ‘operaciontriunfo.us,’ there is no evidence before the Panel that Respondent was actually commonly known by the [<operaciontriunfo.us>] domain name.”).
Complainant asserts that Respondent is attempting to pass itself off as Complainant. Complainant has provided this Panel with screen prints of the website to which the disputed domain name resolves. In the Panel’s estimation, the site appears to be very similar to Complainant’s own site including prominently the distinctive AMWAY mark. Therefore, the Panel finds that Respondent is attempting to pass itself off as Complainant which does not qualify as 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 Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Under Policy ¶ 4(a)(iii), Complainant is required to prove that Respondent registered and used the disputed domain name in bad faith. Policy ¶ 4(b) gives Complainant specific examples of how it may go about proving bad faith. However, the Panel finds that Policy ¶ 4(b) is not the exclusive list of bad faith factors but instead, is merely illustrative of circumstances that may indicate bad faith registration and use if present. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith). Because of this, Complainant is allows to use the totality of the circumstances to prove bad faith registration and use under Policy ¶ 4(a)(iii) if it is able to do so. See Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Complainant contends, and the Panel agrees as stated above, that Respondent is attempting to pass itself off as Complainant. Respondent resolves the disputed domain name to a site that prominently displays Complainant’s AMWAY mark and offers information regarding Complainant’s business. The Panel finds that Respondent is in fact attempting to pass itself off as Complainant, and has thereby registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also Target Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allaamway.biz> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 9, 2011
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