national arbitration forum

 

DECISION

 

Sensa Products, LLC v. Private Whois SensaConsumerReviews.com

Claim Number: FA1112001419218

 

PARTIES

Complainant is Sensa Products, LLC (“Complainant”), represented by Howard Neu of Law Office of Howard Neu, P.A., Florida, USA.  Respondent is Private Whois sensaconsumerreviews.com (“Respondent”), Bahamas.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <sensaconsumerreviews.com>, registered with Internet.Bs Corp.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on December 9, 2011; the National Arbitration Forum received payment on December 9, 2011.

 

On December 9, 2011, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <sensaconsumerreviews.com> 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 December 14, 2011, the Forum served the Complaint and all Annexes, including a 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@sensaconsumerreviews.com.  Also on December 14, 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 January 13, 2012, 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 response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <sensaconsumerreviews.com> domain name is confusingly similar to Complainant’s SENSA mark.

 

2.    Respondent does not have any rights or legitimate interests in the <sensaconsumerreviews.com> domain name.

 

3.    Respondent registered and used the <sensaconsumerreviews.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Sensa Products, LLC, is a large provider of dietary additives directed at weight loss and weight management.  Complainant owns multiple registrations with the United States Patent and Trademark Office (“USPTO”) for its SENSA mark (e.g., Reg. No. 3,583,092 registered March 3, 2009).

 

Respondent, Private Whois SensaConsumerReviews.com, registered the disputed domain name on May 24, 2011.  The disputed domain name resolves to a pay-per-click website with links to Complainant’s competitors in the dietary supplement industry. 

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant submitted sufficient evidence to verify that its SENSA mark is duly registered and that it is the record owner.  Based upon its trademark registrations, the Panel finds that Complainant has established its rights in the SENSA mark under Policy ¶ 4(a)(i).  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); 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).

 

Respondent’s <sensaconsumerreviews.com> domain name is confusingly similar to its SENSA mark.  The disputed domain name includes the entire mark, and adds the generic top-level domain (“gTLD”) “.com” and the generic terms “consumer” and “reviews.”  The Panel finds that the distinctive portion of the disputed domain name is clearly Complainant’s mark and that Respondent has failed to differentiate its disputed domain name from Complainant’s mark, making them confusingly similar under Policy ¶ 4(a)(i).  See 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); 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 satisfied.

 

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant may shift the burden of proof to Respondent by making a prima facie case indicating that Respondent lacks rights or legitimate interests in the disputed domain name.  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.”).  The Panel finds that Complainant has met its prima facie burden, shifting the onus to Respondent to prove that it has rights or legitimate interests in the disputed domain name.  Respondent has failed to file a Response in this matter, which allows the Panel to accept all of Complainant’s allegations as true.  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).  The Panel will examine the entire record before making any determinations regarding Respondent’s rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).

 

Complainant asserts that Respondent is not commonly known by the disputed domain name.  Respondent has not submitted any evidence to controvert this assertion.  The WHOIS information identifies the registrant of the disputed domain name as “Private Whois SensaConsumerReviews.com.”  While the WHOIS information contains the word “sensa,” the Panel determines that Respondent’s failure to provide any further evidence of this fact illustrates that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).  See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also 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).

 

Complainant also asserts that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.  Respondent’s disputed domain name resolves to a pay-per-click website offering links to Complainant’s competitors in the dietary supplement industry, such as MediFast, which does not indicate bona fide, noncommercial or fair use of the disputed domain name.  See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products.  The Panel finds that this use of the disputed domain name does not constitute 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)).  Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s disputed domain name disrupts Complainant’s business, demonstrating bad faith registration and use by Respondent.  The disputed domain name resolves to a website offering links to third parties, many of which resolve to Complainant’s competitors in the dietary supplement field.  Internet users looking for Complainant’s products may arrive at the website and click on one of the links and purchase goods from one of Complainant’s competitors.  The Panel finds that this use disrupts Complainant’s business, illustrating a classic example of bad faith registration and use under Policy ¶ 4(b)(iii).  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 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).

 

Complainant alleges that Respondent registered and is using the disputed domain name for its own commercial gain, also constituting bad faith registration and use.  Respondent’s confusingly similar domain name diverts Internet users to a site offering links to other companies, some of which are Complainant’s competitors.  Respondent presumably collects a click-through fee each time an Internet user is diverted to one of these sites.  Therefore, the Panel finds that Respondent has registered and is using the disputed 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.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <sensaconsumerreviews.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Sandra J. Franklin, Panelist

Dated:  January 20, 2012

 

 

 

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