Absolute Nutrition, LLC v. Matt McLellan
Claim Number: FA1405001561959
Complainant is Absolute Nutrition, LLC (“Complainant”), represented by Michael A. Painter of Isaacman, Kaufman & Painter, California, USA. Respondent is Matt McLellan (“Respondent”), represented by Benjamin H Jarrell, Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <absolutenutritiononline.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2014; the National Arbitration Forum received payment on May 30, 2014.
On May 29, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <absolutenutritiononline.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 June 3, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 2014 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@absolutenutritiononline.com. Also on June 3, 2014, 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 July 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kenneth L. Port 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 is the holder of a trademark known as ABSOLUTE NUTRITION registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,101,017 registered June 6, 2006). This mark has become incontestable under the Lanham Act. The mark is used to identify vitamins and dietary supplements. Respondent’s <absolutenutritiononline.com> domain name incorporates the entire mark and is thus confusingly similar.
Complainant became aware of Respondent through an April 2014 e-mail from an individual identified as “A Concerned Customer.” See Compl., at Attached Ex. 13. Respondent formed a limited liability company called “Absolute Nutrition, LLC” in the state of Alabama in 2009. Under the domain name <absolutenutritiononline.com>, it passes itself off as Complainant and the legitimate ABSOLUTE NUTRITION. See Compl., at Attached Ex. 17.
Respondent profits through a likelihood of confusion. Further, Respondent has continued to use the domain name to spread false accusations about Complainant. Respondent registered the domain name being fully aware of Complainant’s rights.
Respondent registered the domain name on January 28, 2012.
B. Respondent
Complainant’s trademark is a descriptive mark and thereby a very weak mark. Respondent was unaware of Complainant’s trademark prior to receiving the Complaint herein. Respondent has demonstrated preparations to use the domain name in connection with a bona fide offering of goods and services. As such, this Panel should find that Complainant fails to meet its burden of proof with regard to element 4(a)(ii) of the UDRP.
Furthermore, Respondent alleges that Complainant has failed to adequately demonstrate bad faith in Respondent’s use and registration of the mark.
C. Additional Submissions
Having been deemed “insufficient” by NAF for failure to adequately make out its claim, Complainant filed an amended Complaint.
Complainant is the holder of an incontestable trademark ABSOLUTE NUTRITION. However, Respondent has successfully rebutted the claim that it has no rights or legitimate interests in the domain name. Further, though moot once a Panel finds the Respondent has rights or legitimate interests in the domain name, Complainant has failed to make out a claim upon which any reasonable Panelist might rely to grant it the relief sought.
There is apparently no dispute regarding this element. Respondent claims that because the mark is descriptive and weak, it is free to copy it as it might. However, not only is the mark incontestable and, therefore, presumptively strong, at least strong enough to sustain a challenge based on descriptiveness, this argument misses the point under the Policy.
Here, the Respondent includes the entire incontestable and registered trademark in its domain name followed by the words “online” and a .com indication. The domain name here passes the threshold test for confusing similarity where the domain name merely includes Complainant’s mark, the generic term “online,” and the generic top-level domain ("gTLD") “.com.” See Warner Bros. Entm’t Inc.; New Line Prods., Inc. & DC Comics v. Procount Bus. Servs., FA 360942 (Nat. Arb. Forum Dec. 22, 2004) (finding that the addition of one or more generic terms and a gTLD as well as the omission of spaces fails to create a meaningful distinction between the disputed domain name and the mark within it because “[s]uch additions do not disguise the fact that the dominant features of the domain names are [c]omplainant’s marks, and each domain name is therefore confusingly similar to the marks pursuant to Policy ¶ 4(a)(i)”).
As such, this Panel finds that the Respondent’s domain name is confusingly similar to Complainant’s incontestable and registered trademark pursuant to Policy Paragraph 4(a)(i).
Complainant alleges that the Respondent has no rights or legitimate interests in the domain name <absolutenutritiononline.com>. However, Respondent adequately rebuts this claim by pointing out that it has been in business since 2009, has a registered corporation by this or a similar name, and it took a “concerned consumer” to point out to Complainant that they existed. As the parties here co-existed for at least five years, it is difficult to conclude that the Respondent has no rights or legitimate interests in or to the domain name. The Panel therefore finds that the Respondent has rights and legitimate interests under Policy ¶ 4(c)(ii).
However, Respondent’s use of the domain name to solicit competing goods is evidence that Respondent has no Policy ¶ 4(c)(i) bona fide offering or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use associated with this website. See 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).”).
As such this Panel finds that the Respondent does have rights or legitimate pursuant to Paragraph 4(a)(ii) of the Policy.
Although moot once the Panel finds that the Respondent has rights or legitimate interests in or to the domain name, it is important to point out that the Complainant failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
Complainant alleges bad faith use and registration in its Complaint, but it fails to support these claims with any facts or conclusions that would allow any reasonable Panel to agree that there is bad faith here. This Panel will not take judicial notice that there is bad faith. The Complainant must spell out how, why and when there is bad faith. Failure to do so dooms Complainant’s case, even though it is the holder of an incontestable and presumptively strong trademark.
Respondent registered the business in the state of Alabama and has carried out business in that state since 2009. Complainant does not make an adequate showing that Respondent’s decision to register the <absolutenutritiononline.com> domain name amounted to bad faith versus an honest attempt to secure its business’s presence on the Internet. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)).
As such, this Panel finds that there is no evidence in the record to support a finding of bad faith use and registration pursuant to Paragraph 4(a)(iii) of the Policy.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <absolutenutritiononline.com> domain name REMAIN with Respondent.
Kenneth L. Port Panelist
Dated: January 13, 2014
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