national arbitration forum

 

DECISION

 

Meth Lab Cleanup, LLC v. Lee Surgener

Claim Number: FA1303001490567

 

PARTIES

Complainant is Meth Lab Cleanup, LLC (“Complainant”), represented by Robert H. Thornburg of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA.  Respondent is Lee Surgener (“Respondent”), Ohio, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <methlabcleanupohio.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

David A. Einhorn appointed as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 19, 2013; the National Arbitration Forum received payment on March 19, 2013.

 

On March 20, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <methlabcleanupohio.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 March 20, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 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, administrative, and billing contacts, and to postmaster@methlabcleanupohio.com.  Also on March 20, 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 April 15, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant attests that it owns and operates a business using the METH LAB CLEANUP mark. Complainant’s business is in the field of “clandestine drug lab site decontamination” and testing for the presence of hazardous and illegal chemical materials. Complainant registered the METH LAB CLEANUP LLC mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,662,399 registered August 4, 2009). Complainant owns and uses the <methlabcleanup.com> domain name in its business.

 

Complainant contends that Respondent registered the <methlabcleanupohio.com> domain name on December 16, 2009, and uses the domain name to host a website that provides content relating to “decontamination of clandestine methamphetamine drug labs”. Respondent is unrelated to Complainant and not licensed to use the METH LAB CLEANUP LLC mark. Complainant further submits that Respondent was fully aware of Complainant’s mark at the time it registered the <methlabcleanupohio.com> domain name and uses the disputed domain name to cause consumer confusion and direct Internet users to a website at the domain name <ohiobiohaz.com> operated in competition with Complainant. Complainant claims that Respondent registered the <methlabcleanupohio.com> domain name in bad faith, as shown by its infringing use of the domain name to attempt to make a profit by offering services at its resolving website in direct competition with Complainant.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

The Panel notes that Respondent’s domain name was registered on Dec. 16, 2009.

 

FINDINGS AND DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

 

Complainant contends that it owns rights in the METH LAB CLEANUP LLC mark. Complainant provides evidence of its trademark registration for the METH LAB CLEANUP LLC mark with the USPTO (e.g., Reg. No. 3,662,399 registered August 4, 2009) in support of its claim. The Panel finds that Complainant’s federal trademark registration serves to secure Complainant’s rights in its METH LAB CLEANUP LLC mark under Policy ¶ 4(a)(i).

 

Complainant asserts that the <methlabcleanupohio.com> domain name is confusingly similar to the METH LAB CLEANUP LLC mark, citing inclusion of the principal part of the mark within the domain name without Complainant’s permission. The Panel also notes that the domain name includes the geographically descriptive term “ohio”. The Panel concludes that such changes do not alter the <methlabcleanupohio.com> domain name’s confusing similarity to Complainant’s METH LAB CLEANUP LLC mark pursuant to Policy ¶ 4(a)(i). See Laboratoires De Biologie Vegetale Yves Rocher v. Choi, FA 104201 (Nat. Arb. Forum Mar. 22, 2002) (holding that the <yveskorea.com> domain name was confusingly similar to the complainant’s YVES ROCHER mark even though the domain name was only similar in part).

 

 

Rights or Legitimate Interests

 

Complainant contends that Respondent has no authority to use its METH LAB CLEANUP LLC mark in a domain name, and submits that Respondent is not commonly known by the <methlabcleanupohio.com> domain name. The Panel observes that the WHOIS information indicates that “Lee Surgener” is the domain name’s registrant, and concludes that Respondent is not commonly known by the <methlabcleanupohio.com> domain name as demonstrated by the WHOIS information, and therefore lacks rights or legitimate interests in the domain name for the purposes of 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 further alleges that Respondent redirects consumers visiting the website at the <methlabcleanupohio.com> domain name to its own website at the <ohiobiohaz.com> website, which provides information regarding decontamination of “clandestine methamphetamine drug labs,” in competition with Complainant’s business. Complainant provides evidence showing a screenshot of the resolving website, and submits that such use is not a bona fide offering of goods or services nor a fair use of the domain name. The panel in Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003), stated that the respondent failed to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as the respondent diverted Internet visitors to its website that offered services in competition with the complainant’s business. This Panel similarly concludes that Respondent cannot be found to be using the disputed domain name to make 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), as Respondent uses the domain name to offer its services as a methamphetamine cleanup business in direct competition with Complainant.

 

Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant contends that Respondent registered the <methlabcleanupohio.com> domain name in bad faith with the intention of disrupting Complainant’s business by attempting to obtain potential clients that seek Complainant’s decontamination services. The panel in Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006), held that the respondent registered a domain name confusingly similar to the complainant’s mark in order to operate a competing website to that of complainant, which demonstrated an intent to disrupt the complainant’s business in bad faith. This Panel similarly finds that Respondent’s disruptive use of the <methlabcleanupohio.com> domain name by offering a service that competes with Complainant’s business demonstrates bad faith registration and use of the disputed domain name under Policy ¶ 4(b)(iii).

 

Complainant alleges that Respondent’s registration and use of the <methlabcleanupohio.com> domain name was in bad faith as shown by its attempt to attract Internet consumers to its competing website for the purposes of making a profit. Complainant claims that Respondent’s services infringe and interfere with Complainant’s rights due to the offered contamination cleanup services offered at the resolving website. The Panel finds that Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv) is shown by its use of the domain name to offer services competing with Complainant’s services at a confusingly similar domain name in an attempt to attract customers. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant).

 

Complainant contends that Respondent had knowledge of Complainant’s mark when Respondent registered the <methlabcleanupohio.com> domain name. The Panel infers, based upon Respondent’s competing use of the domain name, that Respondent chose the disputed domain name based on Complainant’s registered trademark.  This demonstrates bad faith registration under Policy         ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat'l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (finding that there are reasonable grounds to infer that Respondent had actual notice of Complainant's rights in the mark, and therefore registered the disputed domain name in bad faith, since Complainant's magazine covers an industry towards which Respondent's services are marketed).

 

Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <methlabcleanupohio.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

David A. Einhorn, Panelist

Dated:  April 29, 2013

 

 

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