Meda Consumer Healthcare, Inc. v. Roland Danis
Claim Number: FA1304001492797
Complainant is Meda Consumer Healthcare, Inc. (“Complainant”), represented by Carrie A. Shufflebarger of Thompson Hine LLP, Ohio, USA. Respondent is Roland Danis (“Respondent”), Slovakia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dmatura.net>, registered with NAME.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 3, 2013; the National Arbitration Forum received payment on April 3, 2013.
On April 3, 2013, NAME.COM LLC confirmed by e-mail to the National Arbitration Forum that the <dmatura.net> domain name is registered with NAME.COM LLC and that Respondent is the current registrant of the names. NAME.COM LLC has verified that Respondent is bound by the NAME.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 April 9, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 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@dmatura.net. Also on April 9, 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 May 7, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
The disputed domain name is identical or confusingly similar to a mark in which Complainant has rights. Complainant claims rights in the DRNATURA trademark pursuant to its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,465,812 registered Jul. 15, 2008). Respondent registered the <dmatura.net> domain name on February 14, 2013. The second-level portion of the disputed domain name is confusingly similar to Complainant’s mark, because the lowercase “dmatura” looks very similar to “drnatura.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been known by the disputed domain name, and Complainant has not authorized Respondent to use its DRNATURA mark. Respondent is using the <dmatura.net> domain name to redirect Internet users to <naturalswiss.eu>, a website offering products which compete with Complainant. This is not a bona fide offering or legitimate use.
Respondent registered and is using the disputed domain name in bad faith to divert Internet users to a website that competes with Complainant. This is disruptive of Complainant’s business and evidence of bad faith under Policy ¶ 4(b)(iii). Respondent is attracting Internet users for its own commercial gain by creating confusion with Complainant’s mark. This is bad faith under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for DRNATURA.
Respondent is not affiliated with Complainant and had not been authorized to use the DRNATURA mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in DRNATURA.
The <dmatura.net> domain name addresses a website offering products that compete with Complainant.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the DRNATURA mark with the USPTO sufficiently demonstrates its rights in a mark under Policy ¶ 4(a)(i). Complainant need not register its mark where Respondent operates to demonstrate such rights. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of 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).
The second-level portion of the at-issue domain name is nearly identical to Complainant’s trademark and graphically “dmatura” looks remarkably similar to the lowercase version of Complainant’s mark, “drnatura.” Thereore, the misspelling of Complainant’s trademark in the domain name is insufficient to distinguish the at-issue domain name from the mark under Policy ¶ 4(a)(i). Moreover, appending the generic top-level domain, here “.net,” which is required to form a domain name, is irrelevant to the Panel’s Policy ¶ 4(a)(i) confusing similarity analysis. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the addition of the letter “c” to the complainant’s SAFLOK mark does not distinguish the <saflock.com> domain name from the mark 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).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Roland Danis” as the at-issue domain name’s registrant. Moreover, the record before the Panel contains no evidence that suggests that Respondent is otherwise commonly known by the domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue 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); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent uses the at-issue domain name to redirect users to a web page offering products similar to, and competing with, Complainant’s. This competing use of the domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below, Policy ¶4 (b) specific bad faith circumstances are present and compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent benefits from using a confusingly similar variation of Complainant’s DRNATURA mark in Respondent’s <dmatura.net> domain name to drive traffic to Respondent’s websites. These websites generate revenue for Respondent by linking to other websites offering the same and related goods as those offered by Complainant. In this manner, Respondent uses the <dmatura.net> domain name to divert Internet users to websites competing with Complainant thereby disrupting Complainant’s business and demonstrating bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Furthermore, Respondent’s intentional creation of confusion between Complainant’s DRNATURA mark and the at-issue domain name for Respondent’s own commercial gain demonstrating bad faith under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dmatura.net> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 9, 2013
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