Mead Johnson & Company, LLC v. RITTUK Sutap
Claim Number: FA1208001460359
Complainant is Mead Johnson & Company, LLC (“Complainant”), represented by Ryan D. Levy of Waddey & Patterson, P.C., Tennessee, USA. Respondent is RITTUK Sutap (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutramigenlipilforsale.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 29, 2012; the National Arbitration Forum received payment on August 29, 2012.
On August 31, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <nutramigenlipilforsale.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 September 4, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 24, 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@nutramigenlipilforsale.info. Also on September 4, 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 October 1, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Mead Johnson & Company, LLC, owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the NUTRAMIGEN (e.g., Reg. No. 397,676 registered September 15, 1942) and the LIPIL mark (e.g., Reg. No. 2,603,016 registered July 30, 2002). Complainant uses the marks in connection with infant and children’s nutrition products.
Respondent, RITTUK Sutap, registered the <nutramigenlipilforsale.info> domain name on January 28, 2012. Respondent uses the <nutramigenlipilforsale.info> domain name to resolve to a website that hosts multiple hyperlinks relating to baby formula products, grocery coupons, and other consumer goods, some of which directly compete with Complainant’s products. Respondent collects pay-per-click revenue from the hyperlinks.
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.”).
Complainant owns trademark registrations with the USPTO for the NUTRAMIGEN (e.g., Reg. No. 397,676 registered September 15, 1942) and the LIPIL mark (e.g., Reg. No. 2,603,016 registered July 30, 2002). Complainant uses the marks in connection with infant and children’s nutrition products. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel found that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO. In Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), the panel determined that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction. Therefore, the Panel finds that Complainant owns rights in the NUTRAMIGEN and LIPIL marks under Policy ¶ 4(a)(i) by virtue of its USPTO trademark registrations, regardless of where Respondent resides or operates.
Complainant avers that Respondent’s <nutramigenlipilforsale.info> domain name is confusingly similar to Complainant’s NUTRAMIGEN and LIPIL marks under Policy ¶ 4(a)(i). Complainant notes that the disputed domain name combines Complainant’s NUTRAMIGEN and LIPIL marks and adds the terms “for” and “sale” and the gTLD “.info.” Complainant contends that these alterations to Complainant’s marks fail to properly distinguish the disputed domain name. The Panel finds that Respondent’s <nutramigenlipilforsale.info> domain name is confusingly similar to Complainant’s NUTRAMIGEN and LIPIL marks for the purpose of Policy ¶ 4(a)(i). See 3M Co. v. Silva, FA 1429349 (Nat. Arb. Forum Mar. 30, 2012) (finding that the <littmanncardiologyiii.info> domain name is confusingly similar to the complainant’s LITTMANN and CARDIOLOGY III marks); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also 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).
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).
Complainant contends that Respondent is not commonly known by the <nutramigenlipilforsale.info> domain name under Policy ¶ 4(c)(ii). Complainant argues that Respondent is not a licensee of Complainant and is not authorized to use Complainant’s NUTRAMIGEN and LIPIL marks. Complainant further claims that the WHOIS information lists “RITTUK Sutap” as the registrant of the disputed domain name, which is not similar to the disputed domain name. The Panel finds that Respondent is not commonly known by the <nutramigenlipilforsale.info> domain name according to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant further argues 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). Complainant alleges that Respondent uses the <nutramigenlipilforsale.info> domain name to resolve to a website that hosts multiple competing hyperlinks relating to baby formula products, grocery coupons, and other consumer goods. Complainant asserts that Respondent collects pay-per-click revenue from the hyperlinks. In Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), the panel held that, where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). The Panel finds that Respondent’s use of the <nutramigenlipilforsale.info> domain name constitutes neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant avers that Respondent’s registration and use of the <nutramigenlipilforsale.info> domain name disrupts Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). Complainant accuses Respondent of diverting Complainant’s potential customers to Complainant’s competitors by hosting competing hyperlinks at the website resolving from the <nutramigenlipilforsale.info> domain name. As Respondent is disrupting Complainant’s business, the Panel finds that Respondent registered and uses the <nutramigenlipilforsale.info> domain name in bad faith. 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)).
Complainant claims that Respondent registered and uses the <nutramigenlipilforsale.info> domain name for the purpose of commercially gaining by creating Internet user confusion as to Complainant’s presence and association with Respondent, which Complainant argues is evidence of bad faith under Policy ¶ 4(b)(iv). Complainant alleges that Respondent commercially benefits from click-through fees associated with the competing hyperlinks. Complainant further contends that Respondent’s use of Complainant’s NUTRAMIGEN and LIPIL marks in the disputed domain name creates confusion among Internet users as to Complainant’s affiliation with the disputed domain name. Prior panels have determined that the hosting of competing hyperlinks at a website resolving from a confusingly similar domain name evidenced bad faith registration and use 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).”). Thus, the Panel finds that Respondent registered and uses the <nutramigenlipilforsale.info> domain name in bad faith according to Policy ¶ 4(b)(iv).
Finally, Complainant asserts that Respondent had actual and constructive knowledge of Complainant’s rights in the NUTRAMIGEN and LIPIL marks. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name. The Panel concludes that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nutramigenlipilforsale.info> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 15, 2012
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