Abbott Laboratories v, nutdhasorn vongmahaseddhee
Claim Number: FA1211001471349
Complainant is Abbott Laboratories (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is nutdhasorn vongmahaseddhee (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thealimentum.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 electron-ically on November 14, 2012; the National Arbitration Forum received payment on November 14, 2012.
On November 15, 2012, Godaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <thealimentum.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 November 16, 2012, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of December 6, 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, adminis-trative, and billing contacts, and to postmaster@thealimentum.com. Also on November 16, 2012, 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 which was compliant with the re-quirements of the Policy and its associated rules, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 20, 2012, 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 ALIMENTUM mark, which it employs in the market-ing of infant formula products.
Complainant holds a registration, on file with the United States Patent and Trade-mark Office (“USPTO”) for the ALIMENTUM trademark (Reg. No. 1,508,888, registered October 18, 1988).
Respondent registered the <thealimentum.com> domain name on or about March 13, 2012.
The domain name is confusingly similar to Complainant’s ALIMENTUM mark.
Respondent has not been commonly known by the disputed domain name.
Respondent is not an authorized vendor or distributor of Complainant’s goods.
The <thealimentum.com> domain name is used to display links to websites offer-ing both Complainant’s goods and competing goods, such as organic baby food.
Respondent receives click-through revenue from the operation of the website re-solving from the <thealimentum.com> domain name.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent’s employment of the ALIMENTUM mark in the domain name mis-leads Internet users by creating a false impression of an association with Com-plainant and its products.
Respondent had knowledge of Complainant’s rights in the ALIMENTUM mark when it registered the <thealimentum.com> domain name.
Respondent has registered and is using the contested domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding which was compliant with the requirements of the Policy or its associated rules.
(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 can-celled 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 representa-tions 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 ALIMENTUM trademark under Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a national trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Thailand). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a re-spondent operates, it being sufficient that a complainant can demonstrate rights in a mark in some jurisdiction).
Turning to the central question arising under Policy ¶ 4(a)(i), we are persuaded from our review of the record that the disputed <thealimentum.com> domain name is confusingly similar to Complainant’s ALIMENTUM trademark. The do-main name contains Complainant’s entire mark, merely adding the generic term “the” and the gTLD “.com.” These alterations of the mark, made in creating the domain name, do not save the domain name from the realm of confusing similar-ity under the standards of the Policy. See, for example, AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006), a panel there finding that under Policy ¶ 4(a)(i) the addition to the mark of another of a generic term fails to differ-entiate the resulting domain name from the mark from which it was derived.
See also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007), where a panel found that the addition of a gTLD to the mark of another in forming a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent 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 alle-gations 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 Com-plaint, 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 Respond-ent 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 the disputed domain name, and that Respondent is not an authorized vendor or distributor of Complainant’s goods. Moreover, the pertinent WHOIS record identifies the registrant of the domain name only as “nutdhasorn vongmahaseddee,” which does not resemble the domain name. On this record we conclude that Respondent has not been commonly known by the <thealimentum.com> domain name so as to have dem-onstrated that it has rights to or legitimate interests in the domain name within the contemplation of Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (concluding that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disput-ed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply).
We next observe that Complainant asserts, without objection from Respondent, that the <thealimentum.com> domain name is used to display links to a website offering both Complainant’s goods and competing goods such as organic baby food, and that Respondent receives click-through revenue from the operation of the website resolving from the <thealimentum.com> domain name. This use of the domain name is neither 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 Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007):
Respondent is using the … domain name to display a list of hyper-links, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).
Therefore, the Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are convinced from our examination of the evidence that Respondent’s <thealimentum.com> domain name was registered and is being used in bad faith within the meaning of Policy ¶ 4(b)(iii) in that it disrupts Complainant’s business. On the point, see Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of disputed domain names pursuant to Policy ¶ 4(b)(iii) by using them to operate a commercial search engine with links to websites offering the products of a UDRP complainant and that complainant’s competitors).
We are likewise persuaded that Respondent registered and uses the disputed domain name, which is substantively identical and confusingly similar to Com-plainant’s ALIMENTUM trademark, misleadingly to create in the minds of Internet users a false association with Complainant and its products, and, at the same time to generate click-through fee income for Respondent’s benefit. This is evidence of bad faith registration and use of the domain name under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by using disputed domain names to operate a search engine with links to websites offering the products of both a UDRP complainant and of that complainant’s competitors).
Finally, we are satisfied from the record that Respondent knew of Complainant and its rights in the ALIMENTUM trademark when it registered the contested <thealimentum.com> domain name. This is independent evidence that Re-spondent registered the domain name in bad faith. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith registration of a do-main name where a respondent was "well-aware of” a complainant's YAHOO! mark at the time of the domain name’s registration).
For all of these reasons, 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 <thealimentum.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 3, 2013
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