General Nutrition Investment Company v. claude magne
Claim Number: FA1201001423489
Complainant is General Nutrition Investment Company (“Complainant”), represented by William N. Federspiel of McGuire Woods LLP, Virginia, USA. Respondent is claude magne (“Respondent”), Guadeloupe.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gnccoupons.info>, registered with GoDaddy.com, LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 9, 2012; the National Arbitration Forum received payment on January 9, 2012.
On January 9, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <gnccoupons.info> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 January 10, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 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@gnccoupons.info. Also on January 10, 2012, 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 February 1, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <gnccoupons.info> domain name is confusingly similar to Complainant’s GNC mark.
2. Respondent does not have any rights or legitimate interests in the <gnccoupons.info> domain name.
3. Respondent registered and used the <gnccoupons.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, General Nutrition Investment Company, is the owner of the GNC mark. The mark is used in connection with retail nutrition, health, and fitness stores which sell a variety of products, including vitamins, mineral supplements, herbs, health foods, and cosmetics. Complainant registered the GNC mark (e.g., Reg. No. 2,180,647 registered August 11, 1998) with the United States Patent and Trademark Office (“USPTO”).
Respondent, claude magne, registered the <gnccoupons.info> domain name on January 6, 2011. The disputed domain name resolves to a website which purports to offer information as to where to get Complainant’s coupons and gift cards but actually displays question and answer posts regarding Complainant’s products and other unrelated topics, some of which complain about Complainant’s company and products. Complainant contends that the website also displays a variety of pay-per-click links, but the screenshots of the resolving website submitted do not reflect this claim.
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 argues that it has rights in the GNC mark. Complainant submitted to the Panel proof of its registrations with the USPTO for the GNC mark (e.g., Reg. No. 2,180,647 registered August 11, 1998). A complainant’s registration of a mark with a federal trademark authority, regardless of the location of the parties, establishes the complainant’s rights in that mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). The Panel finds that Complainant, therefore, has rights in the GNC mark under Policy ¶ 4(a)(i).
Complainant contends that the <gnccoupons.info> domain name is confusingly similar to the GNC mark. The Panel finds that Respondent’s addition of the generic top-level domain (“gTLD”) “.info” does not make the disputed domain name distinct from the GNC mark. 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 Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). Similarly, the Panel finds that the <gnccoupons.info> domain name is not differentiated from the GNC mark by Respondent’s addition of the generic term “coupons.” See Am. Online, Inc. v. Shanghaihangwei Packing Material Co. Ltd., D2001-0443 (WIPO May 22, 2001) (finding the <ouricq.com> domain name to be confusingly similar to the complainant’s ICQ mark); see also Yahoo! Inc. v. Casino Yahoo, Inc., D2000-0660 (WIPO Aug. 24, 2000) (finding the domain name <casinoyahoo.com> is confusingly similar to the complainant’s mark). As such, the Panel finds that the <gnccoupons.info> domain name is confusingly similar to the GNC mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) is met.
In accord with the procedural burdens laid out in Policy ¶ 4(a)(ii), Complainant presented a prima facie case arguing against Respondent’s rights and legitimate interests that is sufficient to shift the burden of proving rights and legitimate interests to Respondent. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interests in the subject domain names.”). Respondent declined to respond, however, and thus presented the Panel with nothing to support its position. Without further argument from Respondent, the Panel may assume that Complainant’s allegations are true and hold that Respondent lacks rights and legitimate interests. 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 elects to consider the full record, however, in light of the Policy ¶ 4(c) factors in order to make an independent determination on Respondent’s rights and legitimate interests.
Complainant argues that Respondent is not commonly known by the disputed domain name. Complainant contends that it has not licensed Respondent to use the GNC mark and that Respondent has no other basis for authorization to use the mark. Additionally, the WHOIS record for the <gnccoupons.info> domain name lists “claude magne” as the domain name registrant. Based on these arguments and the lack of other evidence supporting Respondent’s position, the Panel concludes that Respondent is not commonly known by the disputed domain name and thus lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Complainant argues that Respondent’s use of the disputed domain name is neither a bona fide offering of goods and services nor a legitimate noncommercial or fair use. Complainant contends that the <gnccoupons.info> domain name resolves to a website which has pay-per-click links on the side of the website and information which is negative, misleading, and/or false regarding Complainant’s and others’ products. However, the screenshots submitted to the Panel of the website only demonstrate that the latter use is in effect. The use of an identical or confusingly similar disputed domain name to provide negative information and critiques about the complainant is not a protected use. See Weekley Homes, L.P. v. Fix My House Or Else?, FA 96609 (Nat. Arb. Forum Apr. 18, 2001) (finding that establishment of a website containing criticism is not a legitimate use of the <davidweekleyhome.com> domain name because the disputed domain name is confusingly similar to the complainant's DAVID WEEKLEY HOMES mark); see also E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug. 3, 2000) (finding that establishing a legitimate free speech/complaint site does not give rights to use a famous mark in its entirety). Therefore, the Panel finds that Respondent’s use of the <gnccoupons.info> domain name to display negative and misleading or false information about Complainant and its products is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds that Policy ¶ 4(a)(ii) is met.
Complainant contends that Respondent registered and is using the disputed domain name to disrupt Complainant’s business. Respondent’s website displays question and answer posts that largely reflect on Complainant and its products. However, Complainant does not demonstrate that Respondent is a competitor of Complainant. As the Panel determines that Respondent does not compete with Complainant, the Panel chooses not to find bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Complainant argues that Respondent is attempting to commercially benefit from Internet users’ mistakes regarding the source of the disputed domain name by promoting pay-per-click links on its website. However, the evidence Complainant provided to the Panel to demonstrate the use of the disputed domain name, multiple screenshots of the <gnccoupons.info> domain name’s resolving website and additional pages, does not appear to include any pay-per-click links. Therefore, the Panel finds that Respondent did not register or use the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
The Panel finds that the enumerated Policy ¶ 4(b) factors are not exhaustive, and thus the totality of the circumstances may be considered when analyzing bad faith registration and use under Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Complainant argues also that the display of negative, misleading, and/or false information about Complainant on the disputed domain name is further evidence of bad faith by Respondent. Complainant argues that the resolving website includes negative statements regarding the quality of Complainant’s stores and the effects of its products. Panels have found previously that the registration and use of an identical or confusingly similar disputed domain name demonstrates bad faith where the content of the website includes negative comments about the complainant and its products. See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (finding that the respondent registered the domain names <kwasizabantu.com>, <kwasizabantu.org>, and <kwasizabantu.net> in bad faith where the respondent published negative comments regarding the complainant’s organization on the confusingly similar website); see also TM Acquisition Corp. v. S.E.A. Domains, FA 156800 (Nat. Arb. Forum June 12, 2003) (finding the respondent's use of the complainant's mark to redirect Internet users to a website dedicated to criticizing the complainant was evidence that the respondent’s domain names were registered and used in bad faith). The Panel finds that Respondent’s registration and use of the disputed domain name to display criticisms of Complainant and its products demonstrates Respondent’s bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Policy ¶ 4(a)(iii) is met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gnccoupons.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 13, 2012
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