Mead Johnson & Company, LLC v. Michael Hart
Claim Number: FA1208001460358
Complainant is Mead Johnson & Company, LLC (“Complainant”), represented by Ryan D. Levy of Waddey & Patterson, P.C., Tennessee, USA. Respondent is Michael Hart (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutramigencoupons.org>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on August 29, 2012; the National Arbitration Forum received payment on August 29, 2012.
On August 30, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <nutramigencoupons.org> 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 August 31, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 2012, by which Respondent could file a Response to the Complaint, via e-mail to all enti-ties and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nutramigencoupons.org. Also on August 31, 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 27, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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
Complainant has rights in the NUTRAMIGEN mark, which it employs in connect-ion with the marketing of food products for infants, invalids and adults.
Complainant holds registrations, on file with the United States Patent and Trade-mark Office (“USPTO”) for the NUTRAMIGEN trademark (including Reg. No. 397,676, registered September 15, 1942).
Respondent registered the <nutramigencoupons.org> domain name on February 17, 2012.
The <nutramigencoupons.org> domain name is confusingly similar to the NUTRAMIGEN mark.
Respondent has not been commonly known by the disputed domain name.
Complainant has not given Respondent any license or other authorization to use the NUTRAMIGEN mark.
Respondent does not have any rights to or legitimate interests in the contested <nutramigencoupons.org> domain name.
The disputed domain name resolves to a website which displays links to the websites of scores of enterprises operating in competition with the business of Complainant.
Respondent’s use of the disputed domain name is disruptive of Complainant’s business.
The disputed domain name is used to benefit Respondent commercially from the exploitation of the goodwill associated with Complainant’s NUTRAMIGEN mark.
Respondent registered and is using the <nutramigencoupons.org> domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the NUTRAMIGEN mark under Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006), the panel there holding that USPTO registration of a mark establishes rights in a mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction other than that of Respondent’s residence or place of business. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for purposes of para-graph 4(a)(i) of the Policy whether a complainant’s mark is registered in a country other than that of a respondent’s place of business).
Turning to the central question arising under Policy ¶ 4(a)(i), we find from our review of the record that Respondent’s <nutramigencoupons.org> domain name is confusingly similar to Complainant’s NUTRAMIGEN mark. The domain name includes the entire mark, merely adding the generic term “coupons,” which re-lates to an aspect of Complainant’s business, and the gTLD “.org.” These alter-ations of Complainant’s mark, made to create the domain name, are insufficient to distinguish the domain name from the mark under the standards of the Policy.
See, for example, Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000), where a panel held that the addition of a generic term to the mark of another in creating a disputed domain name failed to distinguish the domain name from that mark. See also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), the panel there holding that the addition of a gTLD to the mark of an-other in forming a domain name is irrelevant for purposes of a Policy ¶ 4(a)(i) analysis. This is so because every domain name requires a gTLD.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent 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 has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Com-plaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will ex-amine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respond-ent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny,
that Respondent has not been commonly known by the disputed domain name, and that Complainant has not given Respondent any license or other authoriz-ation to use the NUTRAMIGEN mark. Moreover, the WHOIS listing for the <nutramigencoupons.org> domain name identifies the domain name registrant only as “Michael Hart,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the <nutramigencoupons.org> domain name so as to have demonstrated that it has rights to or legitimate interests in the contested domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so had no rights to or legitimate inter-ests in that domain name under Policy ¶ 4(c)(ii), where there was no evidence in the record, including the pertinent WHOIS information, suggesting that that re-spondent was commonly known by the disputed domain name).
We
next observe that Complainant contends, without objection from Respondent, that
Respondent employs the <nutramigencoupons.org> domain name to
display links to the websites of Complainant’s commercial competitors in the
food indus-try. This is neither bona fide offering of goods or services
under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain
name Policy ¶ 4(c)(iii).
See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), holding
that the use of a disputed domain name to display links to the websites of competitors
of a UDRP complainant is not a use within the bounds of Policy ¶¶ 4(c)(i) and
4(c)(iii).
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(ii).
We are persuaded from our review of the record that Respondent has registered and is using the <nutramigencoupons.org> domain name in bad faith, in that Re-spondent’s use of the domain name, as described in the Complaint, is disruptive of Complainant’s business. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006), in which a panel determined that the use of a domain name which was confusingly similar to the mark of a UDRP complainant to dis-play links to the websites of enterprises operating in competition with the busi-ness of that complainant was evidence of disruption of its business within the contemplation of Policy ¶ 4(b)(iii).
In addition, we are convinced from the evidence that Respondent registered and uses the <nutramigencoupons.org> domain name to benefit commercially from the goodwill associated with Complainant’s NUTRAMIGEN mark. This stands as proof of Respondent’s bad faith in the registration and use of the domain name 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 a respondent’s domain name resolved to a website that offered links to third-party websites featuring services similar to those of a UDRP complainant).
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <nutramigencoupons.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 11, 2012
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