Alticor Inc. v. Om Group / Pravin Awari
Claim Number: FA1311001530303
Complainant is Alticor Inc. (“Complainant”), represented by Kenneth A. Coleman of Warner Norcross & Judd LLP, Michigan, USA. Respondent is Om Group / Pravin Awari (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amwayrewards.com>, registered with SILICONHOUSE.NET PVT LTD.
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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 17, 2013; the National Arbitration Forum received payment on November 18, 2013.
On November 21, 2013, SILICONHOUSE.NET PVT LTD. confirmed by e-mail to the National Arbitration Forum that the <amwayrewards.com> domain name is registered with SILICONHOUSE.NET PVT LTD. and that Respondent is the current registrant of the name. SILICONHOUSE.NET PVT LTD. has verified that Respondent is bound by the SILICONHOUSE.NET PVT LTD. 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 25, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 16, 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@amwayrewards.com. Also on November 25, 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 December 20, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 states that it is one of the world’s largest direct selling companies, and that its AMWAY trademark and brand are well known worldwide. Complainant distributes products through more than 3 million independent business owners in more than 80 countries and territories, including India. Complainant’s AMWAY mark is registered in over 150 countries.
Respondent is the registrant of the disputed domain name <amwayrewards.com>, which Complainant contends is confusingly similar to its AMWAY trademark. Complainant states that Respondent is not in any way affiliated with Complainant; that to the best of its knowledge Respondent is not an independent business owner authorized to sell Complainant’s products; and that in any event Complainant does not authorize its independent business owners to use its AMWAY trademark in domain names without its prior consent. Complainant states that Respondent’s website purports to offer investment and financial consulting services, and that this use is likely to confuse Internet users into believing that the site is owned or authorized by Complainant. Complainant accuses Respondent of using the disputed domain name to fraudulently obtain personal and financial information or fraudulently solicit financial contributions from Internet users. On these grounds Complainant contends that Respondent lacks rights or legitimate interests in the domain name, and that the domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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 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 disputed domain name combines Complainant’s famous trademark with the generic term “rewards” and the top-level domain suffix “.com”. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Capital One Financial Corp. v. CW INC, FA 1527001 (Nat. Arb. Forum Nov. 15, 2013) (finding <capitalonerewards.com> confusingly similar to CAPITAL ONE); Hewlett-Packard Development Co. v. PrivacyProtect.org c/o Domain Admin, FA 1403841 (Nat. Arb. Forum Oct. 12, 2011) (finding <hprewards.com> confusingly similar to HP). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and does not appear ever to have been used other than in an infringing or dilutive manner. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site 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 [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent’s use of the disputed domain name falls squarely within paragraph 4(b)(iv), and it seems likely that the domain name was selected in an effort to exploit Complainant’s famous mark and reputation. See Alticor Inc. v. HYIP Groups, FA 1082359 (Nat. Arb. Forum Nov. 15, 2007) (finding bad faith based upon the use of <amwayinvest.com> for a website offering investment services). The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <amwayrewards.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 20, 2013
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