Sensa Products, LLC v. Smioti, LLC
Claim Number: FA1112001418954
Complainant is Sensa Products, LLC (“Complainant”), represented by Howard Neu of Law Office of Howard Neu, P.A., Florida, USA. Respondent is Smioti, LLC (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sensa-reviews.net>, registered with eNom.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2011; the National Arbitration Forum received payment on December 7, 2011.
On December 13, 2011, eNom.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <sensa-reviews.net> domain name is registered with eNom.com, Inc. and that Respondent is the current registrant of the name. eNom.com, Inc. has verified that Respondent is bound by the eNom.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 December 15, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 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@sensa-reviews.net. Also on December 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 13, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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 <sensa-reviews.net> domain name is confusingly similar to Complainant’s SENSA mark.
2. Respondent does not have any rights or legitimate interests in the <sensa-reviews.net> domain name.
3. Respondent registered and used the <sensa-reviews.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Sensa Products, LLC, uses its SENSA mark to market and produce dietary food additives, dietary food supplements, weight loss additives, and weight loss management. Complainant owns several trademark registrations for its SENSA mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,583,092 registered March 3, 2009); the European Union’s Office of Harmonization for the Internal Market (“OHIM”) (Reg. No. 7,066,871 registered April 24, 2009); and the World Intellectual Property Office (“WIPO”) (Reg. No. 1,031,706 registered February 25, 2010).
Respondent, Smioti, LLC, registered the <sensa-reviews.net> domain name on April 6, 2011. Respondent’s disputed domain name resolves to a parked website that contains competing and unrelated hyperlinks.
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 established rights in its SENSA mark under Policy ¶ 4(a)(i) through its various registrations with the USPTO (Reg. No. 3,583,092 registered March 3, 2009); OHIM (Reg. No. 7,066,871 registered April 24, 2009); and the WIPO (Reg. No. 1,031,706 registered February 25, 2010). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”).
Further, the Panel finds that the <sensa-reviews.net> domain name is confusingly similar to Complainant’s SENSA mark under Policy ¶ 4(a)(i). The domain name contains Complainant’s entire mark while adding a hyphen, the generic term “reviews,” and the generic top-level domain (“gTLD”) “.net.” None of these changes to Complainant’s mark create a domain name that is separate and distinct from the SENSA mark. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also 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 Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant has contended that Respondent does not have any rights or legitimate interests in the <sensa-reviews.net> 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 <sensa-reviews.net> domain name. See F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <sensa-reviews.net> domain name under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name. The Panel notes that the current WHOIS information identifies “Smioti, LLC” as the registrant of the domain name. Respondent has not submitted a Response to these proceedings, thereby failing to present any evidence that it may be commonly known by the domain name at issue. Therefore, the Panel finds that Respondent is not commonly known by the domain name at issue under Policy ¶ 4(c)(ii) based upon the WHOIS information and Respondent’s failure to present evidence on this point. See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response); see also Brown v. Sarrault, FA 99584 (Nat. Arb. Forum Oct. 16, 2001) (finding that the respondent was not commonly known by the <mobilitytrans.com> domain name because it was doing business as “Mobility Connections”).
Respondent is using the <sensa-reviews.net> domain name to resolve to a parked website that features various third-party links to other dietary supplement providers as well as to unrelated businesses. Presumably, Respondent profits from such use through the receipt of click-through or pay-per-click fees. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <sensa-reviews.net> domain name 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) is satisfied.
Respondent registered and is using the <sensa-reviews.net> domain name in bad faith under Policy ¶ 4(b)(iii). Respondent’s domain name resolves to a website that features various third-party links, many of which resolve to competing dietary supplement producers. Complainant contends that this use is disruptive to its business. Prior panels have supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii) under such circumstances. See 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); 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).”). This Panel finds accordingly.
Further, Complainant has argued that Respondent presumably collects click-though or pay-per-click fees in return for sending Internet users to the various websites linked to on the resolving website. Respondent has not come forward to contest any of Complainant’s allegations. The Panel finds, after careful review of Complainant’s evidence, that it is likely that Respondent receives some sort of compensation for its use of the domain name by creating higher web traffic through its use of the SENSA mark in the domain name. Therefore, the Panel finds that Respondent registered and is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
The Panel finds that 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 <sensa-reviews.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: January 16, 2012
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