3M Company v. Janet Etchart
Claim Number: FA1110001411413
Complainant is 3M Company (“Complainant”), represented by William Schultz of Merchant & Gould P.C, Minnesota, USA. Respondent is Janet Etchart (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littmannproducts.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 13, 2011; the National Arbitration Forum received payment on October 14, 2011.
On October 14, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <littmannproducts.com> 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 October 18, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 7, 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@littmannproducts.com. Also on October 18, 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 November 14, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <littmannproducts.com> domain name is confusingly similar to Complainant’s LITTMANN mark.
2. Respondent does not have any rights or legitimate interests in the <littmannproducts.com> domain name.
3. Respondent registered and used the <littmannproducts.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, 3M Company, owns rights in the LITTMANN mark which it uses to produce products for the medical industry, such as stethoscopes. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office ("USPTO") for the LITTMANN mark (e.g., Reg. No. 751,809 registered June 25, 1965).
Respondent, Janet Etchart, registered the <littmannproducts.com> domain name on January 27, 2011. Respondent’s domain name resolves to a website maintained by the registrar which features a search engine and third-party links to companies that sell Complainant’s products and the products of its competitors.
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 presented sufficient evidence to establish rights in its LITTMANN mark under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO (e.g., Reg. No. 751,809 registered June 25, 1965). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Further, Complainant argues that Respondent’s <littmannproducts.com> domain name is confusingly similar to Complainant’s LITTMANN mark. Complainant asserts that the domain name only differs from its mark by adding the generic term “products” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the changes made to Complainant’s mark do not alleviate a finding that the domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <littmannproducts.com> domain name pursuant to Policy ¶ 4(a)(ii). Under the Policy, Complainant is required to produce a prima facie case in support of its assertions in order to shift the burden of proof to Respondent. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”). Here, the Panel finds that Complainant has presented a prima facie case in support of its allegations thus shifting the burden of proof to Respondent. Because Respondent has not provided a Response to Complainant’s allegations, the Panel may presume that the allegations contained within the Complaint are true unless clearly contradicted by the evidence on record. See 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). In the interest of justice, the Panel will continue to evaluate the evidence on record in making its determinations under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). To back up such claims, Complainant submits into evidence a copy of the WHOIS information which identifies the domain name registrant as “Janet Etchart.” The Panel finds that this does not support any claim that Respondent is commonly known by the domain name. Further, Complainant asserts that it has not authorized Respondent to register a domain name containing its mark. The Panel finds, without the benefit of a Response from Respondent, that Respondent is not commonly known by the disputed domain name under 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 submits evidence to show that Respondent’s domain name resolves to a website sponsored by the registrar that features a commercial search engine and various third-party links to companies selling Complainant’s products as well as its competitors products. Such links are contained under headings such as “3M Littmann Stetoscopes,” “Littmann Stethoscopes,” and “Medical Supplies,” among others. Complainant asserts that such use of a confusingly similar domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name because Respondent presumably profits from such use. The Panel agrees with Complainant and finds that Respondent’s use of the domain name as a pay-per-click website with links to Complainant’s competitors in the medical supply business is not 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 also 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has presented evidence to show that Respondent’s disputed domain name resolves to a website that displays various third-party links to companies selling Complainant’s products or the products of Complainant’s competitors. The Panel finds that such use fits squarely within the confines of Policy ¶ 4(b)(iii) and is evidence of bad faith registration and use on Respondent’s part. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); 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)).
Complainant contends that Respondent’s use of the domain name as discussed above likely results in financial gain for Respondent from its use of click-through links on the resolving website. Complainant argues that Respondent’s use of the domain name in question “clearly suggests to Internet users an affiliation between Respondent’s website and Complainant.” The Panel agrees and finds that Respondent registered and is using the domain name in bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
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 <littmannproducts.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: November 15, 2011
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