Alticor Inc. v. Linecom
Claim Number: FA1209001464456
Complainant is Alticor Inc. (“Complainant”), represented by Kenneth A. Coleman of Warner Norcross & Judd LLP, Michigan, USA. Respondent is Linecom (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amwaymedia.com>, registered with Gsonsoft, Inc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 26, 2012; the National Arbitration Forum received payment on September 26, 2012. The Complaint was submitted in both English and Korea.
On September 26, 2012, Gsonsoft, Inc confirmed by e-mail to the National Arbitration Forum that the <amwaymedia.com> domain name is registered with Gsonsoft, Inc and that Respondent is the current registrant of the name. Gsonsoft, Inc has verified that Respondent is bound by the Gsonsoft, 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 October 2, 2012, the Forum served the Korean language Complaint and all Annexes, including a Korean language Written Notice of the Complaint, setting a deadline of October 22, 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@amwaymedia.com. Also on October 2, 2012, the Korean language 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 31, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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
FACTS ABOUT THE AMWAY TRADEMARK AND COMPLAINANT
8. Complainant is one of the world’s largest direct selling companies. Its AMWAY trademark and brand are well known the world over. Complainant has marketed AMWAY brand products for over 50 years. Amway Corporation was founded in 1959. In 2000, Amway Corporation changed its name to Alticor Inc. and changed the name of one of its subsidiaries to Amway Corporation.
9. Through a network of more than 3 million independent business owners, Complainant distributes AMWAY products and other brands of products in more than 80 countries and territories. Complainant’s global sales totaled over US$10.9 billion for the 2011 performance year, which ended December 31, 2011.
10. The AMWAY product line includes more than 450 personal care, nutrition and wellness, home care, home living, and commercial products. The products include cosmetics, skin care products, hair care products, dietary food supplements, nutritional foods, air and water treatment systems, detergents, all-purpose cleaners, home care products, car care products, and many others. The AMWAY mark has also been used on a variety of services, including hotel and real estate services.
11. Complainant, through its related companies and affiliates, has extensively marketed and promoted AMWAY brand products and services throughout the world. Such advertising and promotion of the AMWAY mark has included promotional literature, direct mailings, brochures, videos, presentations, internet web pages, signage, press releases, media interviews and press coverage, meetings, seminars, educational programs, rallies and other events with independent business owners, and many other forms.
12. Complainant is the owner of 38 active trademark registrations and 13 pending applications with the United States Patent and Trademark Office (“USPTO”) for marks that include the word AMWAY for a wide variety of products and services. These registrations are for the word AMWAY alone, as well as stylized versions and the word AMWAY combined with logos and/or other words. The earliest of these registrations was issued in 1960.
13. Complainant is also the owner of almost 2,000 trademark registrations in over 150 countries for marks containing the term AMWAY alone, stylized, and with logos and/or word combinations. Included in these are a number of registrations for AMWAY marks either alone, stylized or combined with other words or logos that are registered in South Korea. (The web page at the domain in question includes sections written in the Korean language.)
14. Regarding domain names, Complainant owns over 1,300 generic top level domain names. These include amway.com, amwayopportunity.com, amwaylive.com, amwayproduct.com, amwayproductinfo.org, and many other variations.
15. Additional information about Complainant and the AMWAY brand can be seen at www.amway.com.
FACTS ABOUT RESPONDENT
16. The Whois database identifies the owner of the amwaymedia.com domain as Linecom (“Respondent”). To the best of Complainant’s knowledge, Respondent is in no way affiliated with or authorized by Complainant. As noted above, Complainant sells its products through a network of authorized independent business owners (“IBOs”). Complainant has made a review of its IBO records and can find no record of an IBO with the name of Respondent or any of the information contained in the website or WhoIs information. To the best of Complainant’s knowledge, Respondent is not now and never has been an IBO authorized by Complainant to sell its products.
17. But, even if Respondent was an IBO, Complainant does not allow its authorized IBOs to use its AMWAY trademark in domain names. Nor does Complainant allow use of the AMWAY trademark on web pages without Complainant’s prior consent.
18. Respondent’s website at amwaymedia.com states that the “website is under construction” and offers the domain name for sale. However, Respondent’s website at amwaymedia.com includes AMWAY within the domain name and clearly targets consumers of and those interested in Complainant’s products and IBO business structure.
19. Respondent’s use of Complainant’s AMWAY mark will clearly lead to confusion that Respondent is a subsidiary or affiliate of Complainant, when it is not.
20. Thus, there can be no doubt that Respondent’s website will create a false association between Respondent and Complainant.
APPLICATION OF PARAGRAPH 4(a) OF THE POLICY TO THE FACTS A. The Domain Name is Identical or Confusingly Similar to Complainant’s mark.
21. Complainant has clearly established its rights in the AMWAY mark through its numerous registrations covering the U.S., as well as numerous other countries, and its widespread use of the mark for 50 years. See Fluke Corp. v. Jon Cullum d/b/a TFunk, FA 267476 (Nat. Arb. Forum June 4, 2004); Innomed Tech., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the . . . mark with the USPTO establishes Complainant’s rights in the mark.”) Previous panels have recognized Complainant’s rights in the AMWAY mark. See Amway Corp. v. Business Internet Connection, D2000-1118 (WIPO November 26, 2000) (“It is also clear, as a result of its long use and ownership of registrations throughout the world, that Complainant has rights in the AMWAY mark.”); Alticor Inc. v. Anton Suprun a/k/a Dinamika Inc., FA 341230 (Nat. Arb. Forum Nov. 29, 2004); Alticor Inc. v. Yong Zhang, FA 450803 (Nat. Arb. Forum May 31, 2005); Alticor Inc. v. Amwayco c/o Yong Zhang, FA 467762 (Nat. Arb. Forum June 8, 2005); Alticor Inc. v. Jiucheng Zhu, FA 861139 (Nat. Arb. Forum January 29, 2007); Alticor Inc. v. Khong Gian Mang Co., Ltd c/o Bui Thi Mai, FA 0801001140947 (Nat. Arb. Forum March 27, 2008); Alticor Inc. v Konstantin Becker aka Sei- Sexy, FA 1265965 (Nat. Arb. Forum July 15 2009); Alticor Inc. v Kemal Eksioglu aka Kemal Eksioglu stdfrr b2k56y; FA 1269568 (Nat. Arb. Forum August 5, 2009); Alticor Inc. v xiu yu(13013650000), FA 1308122 (Nat. Arb. Forum April 6, 2010); Alticor Inc. v. wangxiaodong, FA 1365317 (Nat. Arb. Forum February 22, 2011); Alticor Inc. v. wang chuan, FA 1375215 (Nat. Arb. Forum April 7, 2011); Alticor Inc. v. Rashid osman, FA 1397652 (Nat. Arb. Forum August 17, 2011) and many more.
22. Further, the domain name amwaymedia.com is unquestionably confusingly similar to Complainant’s famous AMWAY mark. It simply contains Complainant’s AMWAY mark with the generic word “media.” It is well established that the addition of a generic or descriptive term is insufficient to distinguish a domain name from a well-known mark. Mattel, Inc. v. Collector Cars, FA 243500 (concerning the addition of the term “dreams” in hotwheelsdreams.com); Compaq Information Technologies Group LP v. Dealer Direct Inc. d/b/a Inacom Information Systems, FA 97062 (Nat. Arb. Forum June 14, 2001) (concerning the addition of the terms “direct” and “direct plus” in compaqdirect.com and compaqdirectplus.com); Mattel, Inc. v. Kim Hyun Jung, FA 256978 (Nat. Arb. Forum June 7, 2004) (concerning the addition of the term “style” in barbiestyle.net); Bose Corp. v. Adplus Etc., S.A., FA 314279 (Nat. Arb. Forum Sept. 30, 2004) (concerning the addition of the term “etc.” in boseetc.com). In the same way, the addition of the generic word “media” does not differentiate the domain name from Complainant’s AMWAY mark. The same issue was previously decided involving Complainant’s AMWAY mark used in conjunction with other generic words. See, e.g., Alticor Inc. v. eMerchant Club, LLC FA 1397596 (Nat. Arb. Forum Aug. 5, 2011) (amwaydistribution.com); Alticor Inc. v. peng wu, FA 1359596 (Nat. Arb. Forum Feb. 1, 2011) (amwayyoung.com); Alticor Inc. v. Konstantin Becker, FA 1265965 (Nat. Arb. Forum July 15, 2009) (amway-products.com).
23. For these reasons, the amwaymedia.com domain name is confusingly similar to Complainant’s AMWAY mark, and Complainant has established the requirements of Paragraph 4(a)(i) of the Policy in its favor.
B. Respondent Does Not Have Any Rights or Legitimate Interests in the Names AMWAY or AMWAYMEDIA.
24. Respondent is not now, and never has been, commonly known by, nor does it have any other legitimate rights in, the names AMWAY or AMWAYMEDIA, nor is Respondent using the amwaymedia.com domain name in connection with a bona fide offering of goods or services or for legitimate noncommercial or fair use.
25. Complainant never authorized Respondent to use the AMWAY mark in any domain name and Respondent is not a subsidiary or affiliate of Complainant.
26. Additionally, it is well-recognized that status as a distributor of the Complainant’s products would not give the Respondent any rights or legitimate interests in registering a domain name containing the AMWAY mark. “It is established under the Policy that a distributor does not necessarily have the right to use a supplier’s mark in a confusingly similar domain name, without a specific agreement to the contrary.” Herbalife Int’l Inc. v. SHOPHERBALIFE.COM a/k/a Cleverson Ezora, FA 281593 (Nat. Arb. Forum July 19, 2004); Associated Materials, Inc. v. Perma Well Inc., FA 154121 (Nat. Arb. Forum May 23, 2003) (finding that, although the respondent was a distributor of the complainant’s product, the respondent was not authorized to use complainant’s mark in its registered domain name an thus, was not using the domain name as a bona fide offering of goods and services, nor a legitimate noncommercial or fair use); Allen-Edmonds Shoe Corp. v. Takin’ Care of Business, D2002-0799 (WIPO October 10, 2002) (“[E]ven where a reseller is an authorized reseller, without a specific agreement between the parties, the reseller does not have the right to use the licensor’s trademark as a domain name.”); Carlon Meter Co. v. Jon Jerman, D2002-0553 (WIPO July 30, 2002) (“Respondent may well be an important distributor of Complainant’s products, but its right to use the trademarks of Complainant do not necessarily extend to a right to use the globally extensive domain name system by incorporating these trademarks in the Domain Names in a manner which links them to Respondent’s web site.”); The Proctor & Gamble Co. v. Marilyn Hlad, FA 126656 (Nat. Arb. Forum Nov. 20, 2002). Complainant’s rules for its IBOs preclude them from using the AMWAY mark as part of a domain name. Alticor Inc. v. Anton Suprun a/k/a Dinamika Inc., FA 341230 (Nat. Arb. Forum Nov. 29, 2004) (“Respondent was a distributor of Complainant’s products and was not authorized to use Complainant’s AMWAY mark in a domain name.”); Alticor Inc. v. Yong Zhang, FA 450803 (Nat. Arb. Forum May 31, 2005).
27. Nor is an inactive domain name a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Georgia-Pacific Consumer Products LP v. Bryan Waller, FA 1448310 (Nat. Arb. Forum Sep. 4, 2012) (“the failure to make an active use of a disputed domain name [is] neither a . . . bona fide offering of goods or services nor a . . . legitimate noncommercial or fair use of the domain name”); Bloomberg Finance L.P. v. Bloobberg United c/o Essam Mahmoud, FA 1203727 (Nat. Arb. Forum July 22, 2008) (failing to make an active use of the domain name is not a bona fide offering of goods or services”); George Weston Bakeries Inc. v. Charles McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (“the passive holding of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services . . . nor is it a legitimate noncommercial or fair use”).
28. As a result, Respondent clearly is not known by AMWAY or AMWAYMEDIA, and does not use its domain name for a bona fide offering of goods or services, nor as a legitimate noncommercial or fair use, and Complainant has established the requirements of Paragraph 4(a)(ii) of the Policy in its favor.
29. Finally, if Respondent fails to respond, such failure may be construed as an admission by Respondent that it lacks rights in legitimate interests in the disputed domain name. Solidvision, Inc. v. Domain Deluxe, FA 374615 (Nat. Arb. Forum Jan. 20, 2005).
C. Respondent’s Registration of the Domain Name to Divert Persons Looking for Complainant on the Internet Constitutes Bad Faith Under the Policy.
30. Complainant’s AMWAY mark is well known and famous worldwide. It has been in use for 50 years. It is used in over 80 countries, including South Korea, with annual sales in the billions of dollars. Further, Complainant’s mark is coined. The term “Amway” has no meaning other than as Complainant’s trademark. As a result, the only purpose Respondent could have for adopting the amwaymedia.com domain name would be to illegitimately profit from the association of the domain name with Complainant. Pancil LLC v. Domain Deluxe, D2003-1035 (WIPO March 5, 2004) (“Since Starfall has no meaning whatsoever the Panel finds it inconceivable that Respondent chose the contested domain name without knowledge of Complainant’s activities and the name and trademark under which Complainant is doing business.”)
31. Furthermore, “[t]he use of a domain name confusingly similar to a trademark that has gained fame is evidence of bad faith.” TruServ Corp. v. TrueValue.net, FA 214460 (Nat. Arb. Forum January 21, 2004); Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum Nov. 7, 2002) (“Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner.”)
32. The domain name is not being, and to Respondent’s knowledge has never been, actively used. Failing to make an active use of the domain name further demonstrates that the Respondent registered and is using the domain name in bad faith. Georgia-Pacific Consumer Products LP v. Bryan Waller, FA 1448310 (Nat. Arb. Forum Sep. 4, 2012) (“failure to make an active use of a disputed domain name [is] evidence of bad faith registration and use of the domain name”); George Weston Bakeries Inc. v. Charles McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (“[r]espondent’s non-use of the disputed domain name . . . indicates bad faith registration and use”).
33. Finally, the Respondent’s offer of the domain name for sale also establishes that the domain name was registered in bad faith. Bank of America Corp. v. Northwest Fre Community Access, FA 180704 (Nat. Arb. Forum Sep. 30, 2003) (“[r]espondent’s general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith”). Therefore, by making a general offer of the disputed domain name for sale, the Respondent has demonstrated that it registered the domain name in bad faith.
34. For the above reasons, Complainant has established bad faith under Paragraph 4(a)(iii) of the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
Pursuant to Rule 11(a), the Panel determines the language requirement has been satisfied through the Korean language Complaint and Commencement Notification. Absent a Response, the Panel determines the remainder of the proceedings may be conducted in English.
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 Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(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 and operates one of the world’s largest direct selling companies and has used its AMWAY brand around the world. Complainant owns numerous trademark mark registrations with the United States Patent & Trademark Office (“USPTO”) for the AMWAY mark (e.g., Reg. No. 707,656 registered Nov. 29, 1960). Complainant owns almost 2,000 trademark registrations in over 150 countries, including South Korea, for its AMWAY mark. The Panel finds Complainant has adequately established its rights in the AMWAY mark under Policy ¶4(a)(i), regardless of Respondent’s location. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant contends Respondent’s <amwaymedia.com> domain name is confusingly similar to Complainant’s AMWAY mark because the domain name merely adds the generic term “media.” The Panel notes the disputed domain name also includes the generic top-level domain (“gTLD”) “.com”, which is disregarded for the purposes of this analysis. Considering all of the facts and the broad range of Complainant’s business, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s AMWAY mark under Policy ¶4(a)(i). See 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).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 Respondent is not commonly known by the disputed domain name and has not been authorized to use the AMWAY mark in any way. Respondent registered the <amwaymedia.com> domain name on May 4, 2012 according to the WHOIS information. Complainant claims Respondent has never been an independent business owner associated with Complainant’s company and has never been authorized to sell Complainant’s products. Based upon Complainant’s uncontested assertions, the Panel finds Respondent is not commonly known by the disputed 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 the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant claims Respondent’s <amwaymedia.com> domain name resolves to a website stating it is under construction and offering the disputed domain name for sale. Complainant contends this is not sufficient to find Respondent is making a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). The Panel concurs and finds Respondent is not making a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for 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)). Secondly, the Panel finds Respondent’s sale offer of the resolving under-construction website is also evidence Respondent does not have rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). See Groupe Auchan v. Slawomir Cynkar, D2009-0314 (WIPO May 11, 2009) (noting that “Respondent’s offer to sell or rent the domain names does not give rise to any right or legitimate interest”).
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s offering of the disputed domain name for sale is sufficient evidence Respondent has registered and is using the disputed domain name in bad faith. Complainant refers to offer for sale contained on the resolving web site. The Panel concurs and finds such an offer of sale is adequate evidence of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶4(b)(i).”).
Complainant argues Respondent’s bad faith registration is also demonstrated by the fact Respondent must have known about Complainant’s rights in the AMWAY mark before registering the disputed domain name because Complainant has registered its mark in many countries and sells billions of dollars per year in products. While UDRP panels have held constructive notice of a complainant’s mark is not sufficient to find bad faith, it appears to this Panel that Respondent had actual knowledge of Complainant’s rights in the AMWAY mark when Respondent registered the disputed domain name, warranting a finding bad faith under Policy ¶4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Nat. Arb. Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). It seems inconceivable Respondent was not aware of Complainant’s mark with over 2,000 trademark registrations.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <amwaymedia.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, November 6, 2012
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