MonaVie, LLC v. CrazyShop.Lda / Arlindo Cordeiro
Claim Number: FA1110001413163
Complainant is MonaVie, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is CrazyShop.Lda / Arlindo Cordeiro (“Respondent”), Portugal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <monavieeurope.com>, registered with UK2 Group LTD.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 26, 2011; the National Arbitration Forum received payment on October 26, 2011.
On October 27, 2011, UK2 Group LTD confirmed by e-mail to the National Arbitration Forum that the <monavieeurope.com> domain name is registered with UK2 Group LTD and that Respondent is the current registrant of the name. UK2 Group LTD has verified that Respondent is bound by the UK2 Group LTD 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 November 1, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@monavieeurope.com. Also on November 1, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 30, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <monavieeurope.com> domain name is confusingly similar to Complainant’s MONAVIE mark.
2. Respondent does not have any rights or legitimate interests in the <monavieeurope.com> domain name.
3. Respondent registered and used the <monavieeurope.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, MonaVie, LLC, distributes diet, weight loss, and food supplements under its MONAVIE mark. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its MONAVIE mark (e.g., Reg. No. 3,766,507 registered March 30, 2010).
Respondent, CrazyShop.Lda / Arlindo Cordeiro, registered the <monavieeurope.com> domain name on January 29, 2011. The disputed domain name resolves to an inactive website. The disputed domain name is also listed for sale for $6,836.00.
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 claims that it has established Policy ¶ 4(a)(i) rights in its MONAVIE mark. In support of this claim, Complainant provides its trademark registrations with the USPTO (e.g., Reg. No. 3,766,507 registered March 30, 2010). While Respondent does not reside in the United States, the Panel finds that Complainant’s USPTO trademark registrations nonetheless establish that Complainant rights in its MONAVIE mark for purposes of 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).”); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <monavieeurope.com> domain name is confusingly similar to Complainant’s MONAVIE mark. Complainant asserts that the disputed domain name combines Complainant’s MONAVIE mark with the geographic term “europe” and the generic top-level domain (“gTLD”) “.com.” These additions fail to adequately distinguish the disputed domain name from Complainant’s mark, and the Panel finds that Respondent’s <monavieeurope.com> domain name is confusingly similar to Complainant’s MONAVIE mark for the purposes of Policy ¶ 4(a)(i). See Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel holds Policy ¶ 4(a)(i) is satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <monavieeurope.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. 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). 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).
Complainant alleges that Respondent is not commonly known by the <monavieeurope.com> domain name. Complainant asserts that respondent is not authorized by Complainant to use Complainant’s MONAVIE mark. Complainant notes that the WHOIS information identifies the registrant of the domain name as “CrazyShop.Lda / Arlindo Cordeiro” which is not similar to the disputed domain name. There is no evidence that Respondent is commonly known by the <monavieeurope.com> domain name. Thus, the Panel determines that Respondent is not commonly known by the <monavieeurope.com> 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 contends that Respondent has not established rights and legitimate interests in the <monavieeurope.com> domain name because the disputed domain name fails to resolve to an active website. Complainant provides a screen shot of the inactive website. Consequently, the Panel determines that Respondent’s failure to make an active use of the disputed domain name is evidence that Respondent is making neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) rights and legitimate interests in the <monavieeurope.com> domain name. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Complainant also claims that Respondent lists the disputed domain name for sale for $6,836.00. Complainant provides evidence that Respondent lists the disputed domain name for sale with a screen shot of the WHOIS information. Based on Complainant’s offer to sell the disputed domain name, the Panel concludes that Respondent lacks rights and legitimate interests in the <monavieeurope.com> domain name under Policy ¶ 4(a)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also 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)).
The Panel holds Policy ¶ 4(a)(ii) is satisfied.
Respondent lists the <monavieeurope.com> domain name for sale. Complainant provides evidence that the disputed domain name is listed for $6,836. The Panel infers that this amount is greater than Respondent’s out-of-pocket costs. Therefore, the Panel finds bad faith registration and use of the <monavieeurope.com> domain name under Policy ¶ 4(b)(i). See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Respondent is advertising the <bigtow.com> domain name for sale for $5,000. Furthermore, Respondent offered to sell the disputed domain name to Complainant for $4,000. The Panel finds that these offers to sell the disputed domain name constitute bad faith registration and use pursuant to Policy ¶ 4(b)(i).”); see also Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs).
Respondent is not making an active use of the <monavieeurope.com> domain name. The Panel determines that Respondent’s failure to make an active use of the <monavieeurope.com> domain name constitutes Policy ¶ 4(a)(iii) bad faith registration and use. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
The Panel holds Policy ¶ 4(a)(iii) is 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 <monavieeurope.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 7, 2011
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