Novartis AG v. shatai lothery
Claim Number: FA1301001481414
Complainant is Novartis AG (“Complainant”), represented by Maury M. Tepper of Tepper & Eyster, PLLC, North Carolina, USA. Respondent is shatai lothery (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <freshlookvision.com>, 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 electronically on January 22, 2013; the National Arbitration Forum received payment on January 22, 2013.
On January 23, 2013, Godaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <freshlookvision.com> 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 January 23, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 12, 2013 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, administra-tive, and billing contacts, and to postmaster@freshlookvision.com. Also on Jan-uary 23, 2013, 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 February 18, 2013, 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 FRESHLOOK mark, which it uses in connection with the marketing of a line of contact lenses.
Complainant holds a United States Patent and Trademark Office (“USPTO”) registration for the FRESHLOOK trademark (Reg. No. 2,888,957, registered September 28, 2004).
Respondent’s <freshlookvision.com> domain name is confusingly similar to the FRESHLOOK mark.
Respondent has not been commonly known by either the FRESHLOOK mark or the disputed domain name.
Respondent has neither any connection nor any affiliation with Complainant, and Complainant has not consented to Respondent’s registration or use of the contested domain name.
The disputed domain name resolves to a website featuring links to websites competing with Complainant’s business.
Respondent operates a website at the <freshlookvision.com> domain name to generate click-through revenue, for its commercial gain, from the diversion of Internet users searching for information about Complainant and its products.
Respondent has no rights to, nor legitimate interests in, the domain name.
Respondent both registered and uses the disputed 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 cancelled 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 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 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 FRESHLOOK trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark auth-ority, the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007):
As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).
Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from our review of the record that the disputed <freshlookvision.com> domain name is confusingly similar to the FRESHLOOK trademark. The domain name contains the mark in its entirety, merely adding a descriptive term and the generic top level domain “gTLD” “.com.” These alterations of the mark, made in forming the domain name, do not save the domain name from the realm of confusing similarity under the standards of the Policy. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005), the panel there finding that the addition of a descriptive term to the mark of another in creating a domain name does not avoid a finding of confusing similarity. Similarly, a panel in Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), found that the addition of a gTLD to the mark of another in forming a domain name does not allow the domain name to escape confusing similarity.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent 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 allegations 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 Complaint, 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 Respondent 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 either the FRESH LOOK trademark or the disputed <freshlookvision.com> domain name, that Respond-ent has no connection or affiliation with Complainant, and that Complainant has not consented to Respondent’s registration or use of the domain name. Moreover, the WHOIS record for the disputed domain name identifies the registrant only as “shatai lothery,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the <freshlookvision.com> domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names, and therefore had no rights to or legitimate interests in them as described in Policy ¶ 4(c)(ii), where neither the relevant WHOIS information, nor any other evidence in the record, indicated that that respondent was commonly known by the disputed domain names, and where a UDRP complainant had not authorized that respondent to register a domain name containing its mark).
We next observe that Complainant asserts, without objection from Respondent, that the disputed domain name resolves to a website which provides hyperlinks to websites competing with Complainant’s business in the contact lens and eye health industry, and that Respondent attempts to profit from this employment of the domain name. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (finding that the operation of a pay-per-click website resolving from a domain name which was confusingly similar to the mark of another was neither a bona fide offering of goods or services under Pol-icy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Therefore, the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded from the evidence that Respondent’s employment of the contested <freshlookvision.com> domain name, which is confusingly similar to Com-plainant’s FRESH LOOK trademark, in the manner alleged in the Complaint dem-onstrates that Respondent registered and uses the domain name in bad faith as described in Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where a respondent’s domain name, which was confusingly similar to the mark of a UDRP complainant, resolved to a website featuring links to third-party websites that offered services similar to those of that complainant).
For this reason, 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 <freshlookvision.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 1, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page