Novartis AG v. BodiBandz / Sprinkle, Barbara
Claim Number: FA1204001437936
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is BodiBandz / Sprinkle, Barbara (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <afresherlook.com>, registered with GoDaddy.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 4, 2012; the National Arbitration Forum received payment on April 4, 2012.
On April 4, 2012, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <afresherlook.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.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 April 6, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 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@afresherlook.com. Also on April 6, 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.
A timely Response was received and determined to be complete on April 12, 2012.
The parties jointly requested a Stay of Administrative Proceeding on April 19, 2012. On June 1, 2012, Complainant requested to remove the Stay of Administrative Proceeding. The request to remove the Stay was granted. As the Stay of Administrative Proceedings was originally granted during the panel selection period, the Panel was then appointed.
On June 6, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Respondent’s <afresherlook.com> domain name, the domain name at issue, is confusingly similar to Complainant’s FRESHER LOOK and FRESH LOOK marks.
Respondent does not have any rights or legitimate interests in the domain name at issue.
Respondent registered and used the domain name at issue in bad faith.
B. Respondent submitted a Response, without factual or legal support, which stated that the domain name at issue was registered in connection with a future business involving rehabilitating foreclosed houses and denying bad faith registration.
Complainant discovers, develops, manufactures, and distributes products relating to vision care and eye health and markets some of these products, such as contact lens products, under its FRESHLOOK mark. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its FRESHLOOK mark (Reg. No. 2,888,957 registered September 28, 2004). Respondent registered the <afresherlook.com> domain name on March 15, 2012. Respondent uses the <afresherlook.com> domain name to resolve to a parked website providing hyperlinks to websites that either provide information related to vision products or sell competing vision products. Respondent is not commonly known by the disputed domain name and is not affiliated with Complainant. Respondent claims to be a real estate rehabilitation company located in Arlington, Texas which is in the business of rehabilitating foreclosed and abandoned properties for the purpose of reselling, leasing, or renting the properties. Respondent does not currently use the disputed domain name but states the intention to use the domain name in connection with its real estate rehabilitation business.
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."
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 has established its rights in the FRESHLOOK mark by registering it with the USPTO (Reg. No. 2,888,957 registered September 28, 2004).
Accordingly, Complainant has established its rights in the FRESHLOOK mark under Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”).
The disputed domain name includes the entire mark, while adding the letter “a” at the front of the mark and the letters “er” to the term FRESH from the mark. The disputed domain name includes the generic top-level domain (“gTLD”) “.com.” Despite the minor changes made, Respondent’s disputed domain name is confusingly similar to Complainant’s FRESHLOOK mark under Policy ¶ 4(a)(i). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (concluding that the <classicmetalroofing.com> domain name was confusingly similar to the complainant’s CLASSIC METAL ROOFS mark because changing the final term of the mark from “roofs” to “roofing” was a minor alteration and did not sufficiently distinguish the domain name from the 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 finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant states that Respondent is not affiliated with Complainant in any way. The WHOIS information identifies the registrant of the disputed domain name as “BodiBandz / Sprinkle, Barbara.” Based upon the evidence available, the Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The disputed domain name resolves to a website offering links to third-party businesses, many of which are Complainant’s competitors in the vision industry. Therefore, 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). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
The disputed domain name resolves to a website offering links to Complainant’s competitors in the vision industry, like Acuvue. The Panel infers that Respondent generates click-through revenue each time an Internet user utilizes one of the links offered at the resolving website. Thus, the Panel concludes that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See 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 established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <afresherlook.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 11, 2012
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