3M Company v. Tice Nguyen / VNTICE
Claim Number: FA1410001585746
Complainant is 3M Company (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Tice Nguyen / VNTICE (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littmannstethoscopesale.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 known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 20, 2014; the National Arbitration Forum received payment on October 20, 2014.
On October 21, 2014, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <littmannstethoscopesale.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 October 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 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@littmannstethoscopesale.com. Also on October 27, 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 November 24, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
1. Complainant uses LITTMANN to identify a family of products in the medical devices field, particularly stethoscopes. The LITTMANN mark has been registered with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 751,809, registered June 25, 1963).
2. The <littmannstethoscopesale.com> domain name, which was registered in September 2014, is confusingly similar to the mark in that it appends a name of key product sold under the mark (“stethoscope”), the generic term “sale,” and an irrelevant gTLD.
3. Respondent has no rights or legitimate interests in the <littmannstethoscopesale.com> domain name. Respondent is not known by the name of the <littmannstethoscopesale.com> domain name, nor has Complainant endorsed or authorized Respondent’s appropriation of the LITTMANN mark in Internet domain names. Further, Respondent appears to use the <littmannstethoscopesale.com> domain name to place advertising on the website and redirect Internet users as per Respondent’s stated disclaimer (noting that Respondent is a part of an Amazon.com affiliate network). There is nothing bona fide or legitimately noncommercial in the use of the domain name because Respondent uses the LITTMANN mark to increase traffic to this website and then profits through advertising and the referenced Amazon.com affiliate arrangement.
4. Respondent has registered and is using the <littmannstethoscopesale.com> domain name in bad faith. First, Respondent is disrupting Complainant’s commercial operations by redirecting Internet users seeking Complainant’s LITTMANN to content that includes competing advertising. Further, Respondent is making an unauthorized use of the LITTMANN mark in a domain name in an attempt to capitalize on the likelihood Internet users who visit the website will believe they have found Complainant’s website. Respondent registered and is using the <littmannstethoscopesale.com> domain name with actual knowledge of the LITTMANN mark and in utter disregard for that mark’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Respondent has consented to the transfer of the 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.”).
Preliminary Issue: Consent to Transfer
The National Arbitration Forum received a communication from Respondent which is identified in this proceeding as “Other Correspondence.” In this email, Respondent states he is “very sorry” to have registered the domain name. The Panel infers from this communication that Respondent consents to the transfer of the domain name to Complainant.
Because Respondent has not contested the transfer of the disputed domain name but instead impliedly agrees to transfer the domain name in question to Complainant, the Panel has chosen to forego the traditional UDRP analysis and order an immediate transfer of the <littmannstethoscopesale.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, 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 Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Respondent having consented to the transfer of the domain name to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <littmannstethoscopesale.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 3, 2014
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