Alticor Inc. v. Sergey A Abdulhanov
Claim Number: FA1311001530219
Complainant is Alticor Inc. (“Complainant”), represented by Kenneth A. Coleman of Warner Norcross & Judd LLP, Michigan, USA. Respondent is Sergey A Abdulhanov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amwaycom.net>, registered with Regional Network Information Center, JSC d/b/a RU-CENTER.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Antonina Pakharenko-Anderson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 15, 2013; the National Arbitration Forum received payment on November 18, 2013. Complainant submitted the Complaint in both English and Russian.
On November 19, 2013, Regional Network Information Center, JSC d/b/a RU-CENTER confirmed by e-mail to the National Arbitration Forum that the <amwaycom.net> domain name is registered with Regional Network Information Center, JSC d/b/a RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC d/b/a RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC d/b/a RU-CENTER 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 19, 2013, the Forum served the Russian language Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of December 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@amwaycom.net. Also on November 19, 2013, the Russian language 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 December 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Antonina Pakharenko-Anderson as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
a) Complainant is one of the world’s largest direct selling companies, for which it uses its AMWAY mark. Complainant’s product line includes more than 450 personal care, nutrition and wellness, home care, home living, and commercial products such as cosmetics, detergents, and car care products as well as hotel and real estate services. Complainant is the owner of a series of the United States Patent and Trademark Office (“USPTO”) registrations for the AMWAY mark with the earliest registration being Reg. No. 707,656 registered Nov. 29, 1960.
b) The <amwaycom.net> domain name is identical or confusingly similar to Complainant’s mark. The disputed domain name merely includes “com” as a generic word and adds the generic top-level domain (“gTLD”) “.net.”
c) Respondent does not have rights or legitimate interests in the disputed domain name.
a. Respondent is not now, and has never been, commonly known by the disputed domain name. The WHOIS record for the <amwaycom.net> domain name lists “Sergey A Abdulhanov” as the domain name registrant. Respondent is not in any way affiliated with or authorized by Complainant, and Respondent is not an authorized independent business owner for Complainant’s sales network. Even if Respondent were an authorized independent business owner seller, Respondent still would not have consent to use the AMWAY trademark in a domain name or on the resolving website.
b. The <amwaycom.net> domain name resolves to a website which offers information about Complainant’s products and offers Complainant’s products for sale in association with the AMWAY mark.
d) Respondent registered and uses the <amwaycom.net> domain name in bad faith.
a. Respondent is creating the false impression that it is an authorized distributor of Complainant’s product, therefore demonstrating bad faith. The only purpose Respondent could have for adopting the <amwaycom.net> domain name would be to illegitimately profit from the association of the domain name with Complainant.
b. Complainant’s AMWAY mark is famous worldwide and has been used in over 80 countries, including Russia.
B. Respondent
Respondent did not submit any document identified as a formal or compliant Response. However, the Respondent submitted several e-mails to the Forum, all of which are either in the Russian language or in very roughly translated English. In his emails the Respondent noted that it had indeed intended to use the domain name for an Amway-related website. In light of this dispute, the Respondent expressed a desire to cancel the domain name or to have the Panel cancel it, or anyway to divest himself of the domain name in question as he alleges that he has no interest in the domain name while the respective website is inactive.
A. Preliminary Procedural Issue: Language of the Proceedings
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.
The language of the Registration Agreement is Russian, thereby initially making the language of the proceedings in Russian. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Russian language Complaint and Commencement Notification.
The Panel is satisfied that the Complainant has taken all reasonable steps to bring the present proceeding to the attention of the Respondent. In particular, the Panel notes that the Complainant has submitted the Complaint both in the English and Russian language to the National Arbitration Forum to initiate the present proceeding. The Respondent has then been notified of the Complaint and its contents in the Russian language. However, the Respondent has failed to respond to the Complainant’s contentions. The Panel finds that the Respondent’s failure to respond to the Complaint might not be the result of the Respondent’s inability to understand the Complaint filed against him but an indication that he could not provide a satisfactory response to the allegations contained in the Complaint lodged by the Complainant.
The Panel, after review of the applicable rules on language of the proceedings under the UDRP and after taking into account all the relevant elements, and specifically factoring the absence of a Response, concludes that it is appropriate to conduct the remainder of the proceedings in the English language. The Panel has discretion to determine the correct language of the proceeding based upon the circumstances of the case. See Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006‑0432. Based upon the circumstances here, we find no prejudice or unfairness to the Respondent in proceeding and rendering the Panel’s decision in the English language. While the Registration Agreement is in Russian, the National Arbitration Forum communicated a number of accommodations to the Respondent to allow it to respond in Russian, and the National Arbitration Forum appointed a Russian speaker to the Panel. Nevertheless, the Respondent did not submit a response to the Complaint. Instead, the Respondent requests to divest himself of the domain name in question.
B. Preliminary Procedural Issue: Consent to Transfer
In this case the Respondent did not submit a formal Response, but noted in an email that it had indeed intended to use the domain name for an Amway-related website. In light of this dispute, the Respondent expressed a desire to cancel the domain name or to have the Panel cancel it.
Thus, an issue arises as to whether the Panel should make findings as to the elements of this case under the Policy given that the Complainant calls for transfer of the disputed domain name and the Respondent answers that call.
In the case of Disney Enterprises, Inc. v. Elmer Morales, NAF Claim No. FA 475191 (June 24, 2005), it was said that “where Respondent has agreed to comply with Complainant's request [to transfer the domain name], the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”
In Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., NAF Claim No. FA 212653 (January 13, 2004) the panel decided that “the parties have both asked for the domain name to be transferred to the Complainant [....] Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.” See also Boehringer Ingelheim International GmbH v. Modern Limited – Cayman Web Development, NAF Claim No. FA 133625 (January 9, 2003).
Paragraph 10 of the Rules sets out the general powers of the Panel. Paragraph 10(a) states that the “Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules” and Paragraph 10(c) states that the “Panel shall ensure that the administrative proceeding takes place with due expedition.”
It has been argued that “due expedition” means that a panel should not diffuse its energy on matters which do not require a decision. It has also been argued that consent-to-transfer requests should not mask the activities of serial cybersquatters.
However, in this specific case the Complainant has not implicitly consented in its Complaint to the transfer of the disputed domain names without a decision on the merits by the Panel, and that furthermore Respondent has agreed to cancel, not necessarily transfer to Complainant, these domain names.
At the same time, the Panel notes that the only available remedy is the one requested by Complainant, and that is transfer of the domain name. Respectively the Panel finds that the Respondent has not given its unilateral and unambiguous consent on the records to the remedy sought by the Complainant.
Yet the more, alongside with the lack of the expressed consent to transfer the conflicting domain name to the Complainant, the Respondent has not expressly admitted the bad faith registration. On the contrary, in his correspondence to the National Arbitration Forum as of November 19, 2013 he assumes that the fact of safe delegation of the conflicting domain name <amwaycom.net> in his name is self-evident of a legal registration.
In light of the above and because the panel finds that the complainant has not agreed to a consent decision and the complainant is entitled to the decision for which it has paid in filing its complaint, the Panel shall proceed to a substantive determination on the merits. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.13.)
C. Findings of Fact
Complainant is one of the world’s largest direct selling companies, for which it uses its AMWAY mark. Complainant’s product line includes more than 450 personal care, nutrition and wellness, home care, home living, and commercial products such as cosmetics, detergents, and car care products as well as hotel and real estate services. The evidences produced by the Complainant show that the Complainant is the owner of a series of the United States Patent and Trademark Office (“USPTO”) registrations for the AMWAY mark with the earliest registration being Reg. No. 707,656 registered Nov. 29, 1960. Complainant also holds various registrations of an AMWAY series worldwide.
The <amwaycom.net> domain name was registered on June 24, 2013.
The Whois database identifies the owner of the amwaycom.net domain as Sergey A Abdulhanov (“Respondent”). Respondent is not in any way affiliated with or authorized by Complainant.
Complainant sells its products through a network of authorized independent business owners (“IBOs”). To the best of Complainant’s knowledge, Respondent is not now, nor has it ever been, an IBO authorized by Complainant to sell its products.
Complainant has not granted to the Respondent the consent for the use of it trademark in the domain name.
The Panel finds that the proceedings have been conducted in accordance with the Policy and the Rules. Having reviewed the series of communications as set out above under the section on procedural history, the Panel concludes that the National Arbitration Forum has notified the Respondent of this proceeding and has discharged its responsibility under paragraph 2(a) of the Rules.
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.
According to Paragraph 14 (a) of the Rules, where there is a failure by the respondent to provide a response to the allegations of the complainant, as in the present case, the Panel shall make a decision on the administrative proceedings on the basis of the complaint and, in accordance with Paragraph 14 (b) of the Rules, shall “draw such inferences there from as it considers appropriate” (See also, Caterpillar Inc. v. Spiral Matrix/ Kentech, Inc.,/Titan Net / NOLDC, Inc, WIPO Case No. D2006‑0808). On the other hand, the Panel should not decide in the complainant’s favor solely because of the Respondent’s default (See Oxygen Media Corporation v. Spiral Matrix, WIPO Case No. D2006‑0521 and Cortefiel S.A. v. Miguel García Quintas, WIPO Case No. D2000‑0140), but shall, under paragraph 15(a) of the Rules, “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”.
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.”).
Pursuant to paragraph 4(a)(i) of the Policy, a complainant must prove that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. In line with such provision, the Complainant must prove two limbs, i.e. it enjoys the trademark right; and the disputed domain name is identical with or confusingly similar to its trademark or service mark.
The Panel finds that the Complainant successfully proves these two aspects of its case. Firstly, the Complainant enjoys the trademark right over the mark AMWAY through both the trademark registrations and extensive and continuing use. Secondly, the disputed domain name, which consists of “amwaycom”, is confusingly similar to the Complainant’s trademark AMWAY.
The following supports the Panel’s opinion.
Registration of a trademark, independent of whether the registration is in the country in which the respondent resides, satisfies the Policy ¶ 4(a)(i) required showing of rights in the mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); 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; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
It has been established by the Panel that the Complainant holds a series of U.S. federal trademark registrations, and oldest one is Reg. No. 707,656 registered Nov. 29, 1960. The AMWAY trademark is also protected in other jurisdictions worldwide.
Therefore, the Panel finds that Complainant has rights in the AMWAY mark under Policy ¶ 4(a)(i).
In assessing the degree of similarity between the Complainant’s mark and the Respondent’s domain names, the Panel shall have regard to the degree of visual, aural or conceptual similarity between them and where appropriate, evaluate the importance to be attached to these different elements. The issue of degree of similarity between the Complainant’s mark and the Respondent’s domain names is to be considered from the perspective of the average consumer of the goods or services concerned and in this case, the average consumer is the Internet user seeking to purchase the Complainant’s products.
The disputed domain name comprises an exact reproduction of the Complainant’s trademark AMWAY juxtaposing with the “com” as a generic word and adds the gTLD “.net”. The AMWAY mark is a coined word with no descriptive significance to the products and/or services offered under it. It is a highly distinctive mark and it has been reproduced in its entirety in the Respondent’s domain name. The Panel finds that this is the most prominent part of the Respondent’s domain name which will attract consumers’ attention. The Panel finds that the addition of the “com” as a generic word and adds the gTLD “.net” does not serve to distinguish it from the Complainant’s AMWAY mark.
Thus, bearing in mind in particular the distinctive character of the AMWAY mark; the dominant component of the Respondent’s domain names; and the visual, aural and similarities between them, the Panel therefore finds that the disputed domain name <amwaycom.net> is confusingly similar to Complainant’s mark as the disputed domain name merely includes “com” as a generic word and adds the gTLD “.net” to the easily recognized AMWAY mark. Previous panels have found both of these changes to be insufficient to undo confusing similarity. See Am. Online, Inc. v. Shanghaihangwei Packing Material Co. Ltd., D2001-0443 (WIPO May 22, 2001) (finding the <ouricq.com> domain name to be confusingly similar to the complainant’s ICQ mark); 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).
Under the consensus view of WIPO decisions under the Policy, the content of a website (whether it is similar or different to the business of a trademark owner) is irrelevant to the finding of confusing similarity (Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698; Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110). For this reason, it is not necessary to compare the contents of the Complainant’s and the Respondent’s websites for the purpose of paragraph 4(a)(i) of the Policy.
Therefore, the Panel finds that Respondent’s <amwaycom.net> domain name is confusingly similar to the AMWAY mark under Policy ¶ 4(a)(i).
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent has not rebutted the Complainant’s contention.
The Panel finds that Respondent is not now, and has never been, commonly known by the disputed domain name as the WHOIS record for the <amwaycom.net> domain name lists “Sergey A Abdulhanov” as the domain name registrant.
Furthermore, Complainant claims that Respondent is not in any way affiliated with or authorized by Complainant, and Respondent is not an authorized independent business owner for Complainant’s sales network. Complainant continues to state that, even if Respondent were an authorized independent business owner seller, Respondent still would not have consent to use the AMWAY trademark in a domain name or on the resolving website. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark.
In light of the above the Panel finds that Respondent is not commonly known by the <amwaycom.net> domain name under Policy ¶ 4(c)(ii).
Complainant next contends that the <amwaycom.net> domain name resolves to a website which offers information about Complainant’s products and offers Complainant’s products for sale in association with the AMWAY mark. With reference to the evidences supporting the Complaint and in light of that implicit confirmation of the Complainant’s contentions on selling of the AMWAY branded products through the conflicting website contained in the Respondent’s e-mail as of November 19, 2013 sent to the NAF. The Panel establishes that the domain name evidently resolves to a generic website with sparse content beyond hyperlinks reading “Beauty” and “Home” which is used by the Respondent to sell the Complainant’s products. Thus the Panel is of the opinion that such use 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 Compl., at Attached Ex. B. In Caterpillar Inc. v. Huth, FA 169056 (Nat. Arb. Forum Sept. 2, 2003), the panel stated, “Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”
A number of panels have held that the burden on a complainant regarding the element provided by paragraph 4(a)(ii) of the Policy is necessarily light, because the nature of the registrant’s rights or interests, if any, in the domain name lies most directly within the registrant’s own knowledge (see Packaging World Inc. v. Zynpak Packaging Products Inc., eResolution Case No. AF-0233; Education Testing Service v. TOEFL, WIPO Case No. D2000-0044; Grove Broadcasting Co. Ltd v. Telesystems Communications Limited, WIPO Case No. D2000-0703). There is also a consensus view among panels that once the complainant makes a prima facie showing that the registrant does not have rights or legitimate interests in the domain name, the evidentiary burden shifts to the registrant to rebut the showing by providing evidence of its rights or interests in the domain name (See e.g. Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party, WIPO Case No. D2000-1415; Inter-Continental Hotels Corporation v. Khaled Ali Soussi, WIPO Case No. D2000-0252).
Where, as here, the Complainant has made a prima facie showing of the Respondent’s lack of such right or interest and Respondent has failed to come forward to rebut that showing, the Panel is entitled to accept that the Complainant has established the second element in paragraph 4(a)(ii) of the Policy. As provided for by paragraph 14 of the Rules, the Panel may draw such inference from the Respondent’s default as it considers appropriate.
The Panel therefore finds that the Respondent does not have rights or legitimate interests in the disputed domain name and that the Complainant fulfills the condition provided in paragraph 4(a)(ii) of the Policy.
Finally, the Complainant must show that the Respondent both registered and is using the domain name in bad faith. Paragraph 4(a)(iii) of the Policy.
A non-exhaustive list of what constitutes bad faith registration and use is set out in paragraph 4(b) of the Policy, including paragraph 4(b)(iv), which indicates that bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. See PRL USA Holdings, Inc. v. Yan Shif, WIPO Case No. D2006-0700.
Complainant asserts that Respondent registered and uses the <amwaycom.net> domain name in bad faith.
Complainant notes that its AMWAY mark is famous worldwide and has been used in over 80 countries, including Russia. Through a network of more than 3 million independent business owners, Complainant distributes AMWAY products and other brands of products in more than 80 countries and territories, including Russia where the Respondent domiciles.
At the same time it has been established that the <amwaycom.net> domain name resolves to a website which offers information about Complainant’s products and offers Complainant’s products for sale in association with the AMWAY mark. The conflicting domain name resolves to the website containing very sparse information about the products, and which is silent about the registrant's relationship with the trademark owner.
Complainant claims that Respondent is not in any way affiliated with or authorized by Complainant, and Respondent is not an authorized independent business owner for Complainant’s sales network.
As Respondent does not have any business relationship, or any other ties with the Complainant, and given that the disputed domain name incorporates the Complainant’s trademark, Internet users are highly likely to be confused as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Respondent in all likelihood registered and is using the disputed domain name to profit from the users’ confusion with Complainant’s mark.
The Panel does find that in view of the submitted evidence, and in the specific circumstances of this case, there is a very strong inference that the Respondent’s purpose of registering the domain name was for commercial gain in bad faith within the meaning of the Policy.
There is substantial authority that registration of a domain name that is confusingly similar to a famous trademark by any entity that has no relationship to that mark is itself sufficient evidence of bad faith registration and use. See Sporty’s Farm LLC v. Sportsman’s Market, Inc., 202 F.3d 489, 498 (2d Cir. 2000); Centurion Bank of Punjab Limited v. West Coast Consulting, LLC, WIPO Case No. D2005-1319; Pfizer Inc. v. NA, WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin, WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (use of a name connected with such a well-known product by someone with no connection with the product suggests opportunistic bad faith).
The Respondent clearly registered the domain name, appropriating the Complainant’s famous trademark, in order to suggest to the Internet user a connection between the Complainant’s and the Respondent’s business which simply did not exist. This is misleading and supports a finding of bad faith registration. See Pfizer Inc. v. NA, WIPO Case No. D2005-0072.
Further, the likelihood of confusion has to be appreciated globally, taking account of all relevant factors and the more distinctive the earlier mark the greater would be the likelihood of confusion. Where the association between the domain name and the trademark would cause the end user to believe wrongly that the respective services came from the same or economically linked undertakings, there would be a likelihood of confusion. See Ellerman Investments Ltd. and another v. C-Vanci [2006] EWHC 1442, Caterpillar Inc. v. Spiral Matrix/ Kentech, Inc., /Titan Net / NOLDC, Inc, WIPO Case No. D2006-0808) and PRL USA Holdings, Inc. v. Yan Shif, WIPO Case No. D2006-0700.
Thus the Respondent may create the false impression that it is an authorized distributor of Complainant’s product, therefore demonstrating bad faith. According to Complainant, the only purpose Respondent could have for adopting the <amwaycom.net> domain name would be to illegitimately profit from the association of the domain name with Complainant. The Respondent has not refuted the Complainant’s contentions either. See Compl., at Attached Ex. B. In Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000), the panel found that the respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods.
Therefore, the Panel finds that Respondent registered and uses the <amwaycom.net> domain name in a bad faith attempt to take commercial advantage of Internet users’ mistakes under Policy ¶ 4(b)(iv).
Furthermore, the Panel also finds in this case that, due to the fame of Complainant's mark and due to the sales of the Amway-related products through the conflicting website, Respondent had actual knowledge of the mark and Complainant's rights.
While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel holds that Respondent in this case registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Therefore, the Panel finds that Respondent registered and uses the <amwaycom.net> domain name in a bad faith as provided in paragraph 4(b)(iv) of the Policy, and thus the Complainant fulfills the condition provided in paragraph 4(a)(iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwaycom.net> domain name be TRANSFERRED from Respondent to Complainant.
Antonina Pakharenko-Anderson, Panelist
Dated: January 8, 2014
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