Quest Nutrition, LLC v. QUESTNUTRITION.COM / Privacy--Protect.org
Claim Number: FA1112001418539
Complainant is Quest Nutrition, LLC (“Complainant”), represented by Brian A. Hall of Traverse Legal, PLC, Michigan, USA. Respondent is QUESTNUTRITION.COM / Privacy--Protect.org (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <questnutrition.com>, registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com.
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 December 6, 2011; the National Arbitration Forum received payment on December 6, 2011. The Complaint was received in English and Slovak.
On December 8, 2011, Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com confirmed by e-mail to the National Arbitration Forum that the <questnutrition.com> domain name is registered with Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com and that Respondent is the current registrant of the name. Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) Ltd d/b/a Hebeidomains.com 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 December 13, 2011, the Forum served the Slovak language Complaint and all Annexes, including a Slovak language Written Notice of the Complaint, setting a deadline of January 3, 2012 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@questnutrition.com. Also on December 13, 2011, the Slovak language 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 January 11, 2012, 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Slovak language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <questnutrition.com> domain name is identical to Complainant’s QUEST NUTRITION mark.
2. Respondent does not have any rights or legitimate interests in the <questnutrition.com> domain name.
3. Respondent registered and used the <questnutrition.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Quest Nutrition, LLC, uses its corporate name and mark to produce and sell nutritional protein bars. Complainant owns a trademark registration with the United States Patent and Trademark Office ("USPTO") for the QUEST NUTRITION mark (Reg. No. 3,703,003 filed August 1, 2008; registered October 27, 2009).
Respondent, QUESTNUTRITION.COM / Privacy--Protect.org, acquired the domain name at some time after August 20, 2008. Respondent’s domain name resolves to a website that features third-party links to competing nutrition stores and unrelated third-party websites.
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 presents evidence that it owns a trademark registration for the QUEST NUTRITION mark with the USPTO (Reg. No. 3,703,003 filed August 1, 2008; registered October 27, 2009). Prior panels have determined that a trademark registration confers rights on a Complainant under Policy ¶ 4(a)(i) and that such rights date back to the original filing date with the USPTO. 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 Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
Further, Complainant argues that the disputed domain name is identical to its mark under Policy ¶ 4(a)(i). Respondent’s <questnutrition.com> domain name contains Complainant’s entire QUEST NUTRITION mark while deleting the space between the terms of the mark and adding the generic top-level domain (“gTLD”) “.com.” The Panel finds that Respondent’s disputed domain name is identical to Complainant’s mark under 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 Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <questnutrition.com> domain name under Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of its allegations and then the burden shifts to Respondent to prove it possesses rights or legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent’s failure to respond to these proceedings, however, the Panel may assume Respondent does not possess rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002) (“Because Complainant’s submissions constitute a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its right or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). In making its determinations under Policy ¶ 4(c), however, the Panel will continue to evaluate all evidence on the record.
Complainant alleges that Respondent is not commonly known by the disputed domain name, and Respondent has not acquired any trademark or service mark rights in the domain name. The WHOIS information identifies “QUESTNUTRITION.COM / Privacy--Protect.org” as the domain name registrant. However, Respondent has not come forward with any information or evidence indicating its position under Policy ¶ 4(c)(ii). Therefore, the Panel finds that although it may appear that Respondent is commonly known by the disputed domain name, without further evidence indicating a relationship, the Panel cannot make such a finding under Policy ¶ 4(c)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name); see also Qwest Commc’ns Int’l, Inc. v. Qwest Networking, FA 238004 (Nat. Arb. Forum Apr. 8, 2004) (“The Panel determines that, because of the fame of Complainant’s mark, Respondent does not have rights or legitimate interests in the <qwestcommunications.net> domain name, despite the presence of the word ‘qwest’ in the domain name registration WHOIS information.”).
Respondent is using the disputed domain name to display a pay-per-click links page that contains links to companies and businesses that may be of interest to Complainant’s customers. Respondent’s website also contains links to unrelated businesses and websites. Such links are located under headings such as “The Vitamin Shoppe,” “Nutritional Supplements,” “Be a Nutrition Consultant,” and “Health Insurance,” as well as many others. Presumably Respondent collects click-through or affiliate fees from these business in exchange for increased Internet traffic. The Panel finds that such use does not amount to 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 Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that the current Respondent acquired the disputed domain name at some time after August 20, 2008 when the domain name registration was changed from the previous registrant to a privacy service. Complainant further contends that the current registrant/Respondent likely did not obtain the domain name until December 24, 2010, the last date on which the registration information for the disputed domain name changed. Respondent has not come forward to contend any of these arguments. The Panel therefore finds that Respondent did not acquire the domain name until after Complainant had established rights in the mark through its trademark registration, thereby removing any issue regarding the domain name predating Complainant’s rights in the mark. See The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (Although the disputed domain name had been created prior to the complainant obtaining rights in the mark at issue, the Panel found the complainant’s rights to predate the respondent’s registration because the disputed domain name had been transferred to the respondent only a month prior to the proceeding. “Therefore, one only needs to trace the registration date back to the most recent transfer instead of the original registration.”); see also BWR Resources Ltd. v. Waitomo Assoc. Ltd., D2000-0861 (WIPO Oct. 4, 2000) (finding that registration refers to the date when the respondent acquired the name from the person who first registered it.).
Complainant contends that Respondent’s use of the disputed domain name is evidence of bad faith as the links to competing companies create a disruption to Complainant’s business. The Panel has previously found that Respondent’s resolving website features third-party links to companies in competition with Complainant. This use is evidence of bad faith registration and use under Policy ¶ 4(b)(iii) as it inherently disrupts Complainant’s business by sending potential customers to its competitors. See 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Further, Complainant argues that Respondent is using the disputed domain name to attract Internet users to its resolving website, for commercial gain, by creating confusion as to Complainant’s affiliation with or sponsorship of the disputed domain name. The Panel agrees and finds that Respondent’s use of the domain name in question to host a series of hyperlinks for commercial gain is evidence of 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 Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
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 <questnutrition.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 12, 2012
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