Meth Lab Cleanup, LLC v. Tony Branch
Claim Number: FA1208001456469
Complainant is Meth Lab Cleanup, LLC (“Complainant”), represented by Robert H. Thornburg of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA. Respondent is Tony Branch (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <methlabcleanup.co>, registered with Godaddy.com, Inc.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 2, 2012; the National Arbitration Forum received payment on August 3, 2012.
On August 3, 2012, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <methlabcleanup.co> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. 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 August 10, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@methlabcleanup.co. Also on August 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 September 5, 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 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 <methlabcleanup.co> domain name is confusingly similar to Complainant’s METH LAB CLEANUP mark.
2. Respondent does not have any rights or legitimate interests in the <methlabcleanup.co> domain name.
3. Respondent registered and used the <methlabcleanup.co> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns trademark registrations for the METH LAB CLEANUP mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,662,398 registered August 4, 2009). Complainant uses the METH LAB CLEANUP mark in its business as a consultant in “clandestine drug lab site decontamination” and evaluates illegal drug lab sites for hazardous materials.
Respondent registered the <methlabcleanup.co> domain name on July 25, 2010, and uses it to redirect Internet users to a website relating to automobile locksmith services.
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.
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.”).
The Panel finds that Complainant’s USPTO trademark registrations secure Complainant’s rights in the METH LAB CLEANUP mark pursuant to Policy ¶ 4(a)(i). In Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004), the panel stated that registration of a mark with the USPTO establishes the complainant’s rights in the mark.
Respondent’s <methlabcleanup.co> domain name wholly incorporates Complainant’s METH LAB CLEANUP mark, eliminates the spaces between the words of the mark, and includes the country-code top-level domain (“ccTLD”) “.co.” The Panel finds that these changes do not distinguish the disputed domain name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). See Tech. Props., Inc. v. Burris, FA 94424 (Nat. Arb. Forum May 9, 2000) (finding that the domain name <radioshack.net> is identical to the complainant’s mark, RADIO SHACK); see also Sensient Techs. Corp. v. Kolcak, FA 1355265 (Nat. Arb. Forum Nov. 22, 2010) (stating that attaching the ccTLD “.co” does nothing to prevent the disputed domain name form being identical to the complainant’s mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 argues that Respondent is not commonly known by the <methlabcleanup.co> domain name because Respondent is actually known as “Dallas Locksmith.” The WHOIS information associated with the disputed domain name identifies the registrant is “Tony Branch.” Neither the “Dallas Locksmith” name nor the “Tony Branch” name indicate that Respondent is commonly known by the <methlabcleanup.co> domain name. The Panel therefore concludes that Respondent does not possess rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant contends that Respondent redirects Internet users to a website relating to automobile locksmith services, which is unrelated to the services Complainant offers under the METH LAB CLEANUP mark. The Panel finds that Respondent’s use of the <methlabcleanup.co> domain name to market unrelated services is 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). The panel in Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003), held that diverting consumers seeking the complainant’s products to a website unrelated to the complainant’s mark is not a bona fide offering of goods or services or a representation of a noncommercial or fair use of the disputed domain name.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent registered and uses the <methlabcleanup.co> domain name in bad faith to disrupt Complainant’s business because Respondent uses the disputed domain name to forward business to Respondent’s website. Thus, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iii).
Respondent uses the disputed domain name to intentionally attract Internet users to its website for commercial profit, which the Panel finds demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <methlabcleanup.co> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 12, 2012
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