ARIIX, LLC v. Private Registration
Claim Number: FA1307001508799
Complainant is ARIIX, LLC (“Complainant”), represented by Tyler B. Jones of ARIIX General Counsel, Utah, USA. Respondent is Private Registration (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ariixcorporate.com>, registered with CRAZY DOMAINS FZ-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 July 9, 2013; the National Arbitration Forum received payment on July 9, 2013.
On July 10, 2013, CRAZY DOMAINS FZ-LLC confirmed by e-mail to the National Arbitration Forum that the <ariixcorporate.com> domain name is registered with CRAZY DOMAINS FZ-LLC and that Respondent is the current registrant of the name. CRAZY DOMAINS FZ-LLC has verified that Respondent is bound by the CRAZY DOMAINS FZ-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 July 17, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 6, 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@ariixcorporate.com. Also on July 17, 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 August 14, 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:
Complainant, ARIIX, LLC, is associated with nutritional and wellness products and presents the opportunity for others to sell those products in a direct-selling, network marketing distribution channel. Complainant is the owner of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the ARIIX mark (Reg. No. 4,242,877, filed May 25, 2011, registered November 13, 2012). Respondent’s <ariixcorporate.com> domain name is identical to Complainant’s ARIIX trademark.
Respondent has no rights or legitimate interests in the at-issue domain name. Respondent has never been known by the domain name and has never been associated with Complainant or Complainant’s products. A visitor to the <ariixcorporate.com> domain name will be met with a website displaying pornographic images.
Respondent registered and is using the disputed domain name in bad faith. Respondent is attempting to extort an exorbitant price from Complainant for the purchase of the disputed domain name. Respondent acquired the domain name to disrupt Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for ARIIX.
Respondent is not affiliated with Complainant and had not been authorized to use the ARIIX mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in ARIIX.
Respondent is an extortionist. Respondent uses the domain name to display online pornography in a scheme to extort Complainant into purchasing the at-issue domain name.
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 ARIIX mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). 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)”).
Respondent uses Complainant’s ARIIX mark in its entirety, adds the generic term “corporate,” and appends the top level domain name “.com” thereto to form the domain name. The addition of a generic term does not differentiate Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that notwithstanding that the generic term and gTLD are added to Complainant’s mark, Respondent’s <ariixcorporate.com> domain name is nonetheless confusingly similar to Complainant’s ARIIX mark pursuant to Policy ¶ 4(a)(i).See Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element). Likewise, the inclusion of a gTLD to Complainant’s mark is inconsequential to a Policy ¶ 4(a)(i) analysis. See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain names. 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 any of the domain names.
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 any of the at-issue domain names, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Private Registration” as the registrant of the <ariixcorporate.com> domain name. Respondent appears to be named “Dhaneel Mahilall,” an independent distributor with USANA Health Sciences, a direct competitor of Complainant’s. Moreover, the record before the Panel contains no evidence that suggests 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).
Internet users navigating to the <ariixcorporate.com> domain name are greeted by a website filled with pornographic images. Respondent’s use of the <ariixcorporate.com> domain name to redirect Internet users to an adult-oriented website is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.See Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that a respondent’s use of the <targetstore.net> domain name to redirect Internet users to an adult-oriented website did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under 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, as well as other circumstance, are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy regarding the at-issue domain name.
Respondent is attempting to extort an exorbitant price from Complainant for the purchase of the at-issue domain name. Prior to the filing of the instant complaint Respondent, as Dhaneel Mahilall, sent an email to Complainant’s customer support stating that he would like to sell the <ariixcorporate.com> domain name to Complainant for $110,000.00. Thereafter, Mahilall sent another email to one of Complainant’s representatives stating that the price for the disputed domain had gone up from $110,000.00 to $140,000.00. Respondent next sent a message through Facebook to the President of Complainant’s company stating that the price for the domain name was $150,000.00 and was “climbing quickly.” Respondent sent several more emails to Complainant and its representatives and in the process raised the price for the <ariixcorporate.com> domain name to $400,000.00. Respondent’s offer to sell the at-issue domain name domain for a price in excess of out-of-pocket costs demonstrates Respondent’s bad faith use and registration of the domain name pursuant to Policy ¶ 4(b)(i). See World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs).
Furthermore, the evidence makes clear that Respondent acquired the domain name to disrupt Complainant’s business. Although Respondent’s use of the at-issue domain name to run an adult-oriented website does not necessarily disrupt Complainant’s business under Policy ¶ 4(b)(iii) since Respondent does not appear to be a competitor of Complainant, Respondent’s use of the <ariixcorporate.com> domain name additionally demonstrates Respondent’s bad faith use and registration under Policy ¶ 4(b)(iv). See Google Inc. v. Bassano, FA 232958 (Nat. Arb. Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ariixcorporate.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 14, 2013
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