IHERB, INC., A CALIFORNIA CORPORATION v. Gang Lu / Health Sources Nutrition Co., Ltd.
Claim Number: FA1511001645292
Complainant is IHERB, INC., A CALIFORNIA CORPORATION (“Complainant”), represented by Margaret A. Hosking of Best Best & Krieger, LLP, California, USA. Respondent is Gang Lu / Health Sources Nutrition Co., Ltd. (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <iherblife.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 Forum electronically on November 3, 2015; the Forum received payment on November 3, 2015.
On November 4, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <iherblife.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 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 2015 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@iherblife.com. Also on November 6, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 IHERB mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,134,787, registered on August 29, 2006). Respondent’s <iherblife.com> domain name is confusingly similar to the IHERB mark because it contains the entire unaltered mark, along with the word “life” and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <iherblife.com> domain name. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the <iherblife.com> domain is used to sell nutritional supplements in direct competition with Complainant.
Respondent uses the <iherblife.com> domain name in bad faith because it uses the resolving website to compete with Complainant. Respondent registered the <iherblife.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the IHERB mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <iherblife.com> domain name was created on September 5, 2015.
The Panel finds that the disputed domain name is confusingly similar with the Complainant’s trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed 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.”).
The Panel finds that the disputed domain name is confusingly similar with the Complainant’s registered trademark. Complainant has rights in the IHERB mark through its registration with the USPTO (e.g., Reg. No. 3,134,787, registered on August 29, 2006). Complainant has provided this, in Annex B, along with registrations in other countries in Annex C. As such, the Panel finds that Complainant has established rights in the IHERB mark under Policy ¶ 4(a)(i).
The Panel finds that the Respondent’s <iherblife.com> domain name is confusingly similar to Complainant’s IHERB mark because it contains the entire mark, along with the word “life” and the gTLD “.com.” Complainant argues that the word “life” increases the likelihood of confusion between the mark and domain because Complainant uses the IHERB mark in conjunction with the sale of nutritional supplements. While this may be true, the Panel reserves comment on this allegation as it is unnecessary to find the disputed domain name confusingly similar with the Complainant’s mark. The mere addition of a generic word and a gTLD does not distinguish this disputed domain name from the registered trademark.
Therefore, the Panel finds that Respondent’s <iherblife.com> domain name is confusingly similar to Complainant’s IHERB mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by the <iherblife.com> domain name. The WHOIS information lists “Gang Lu” as Registrant. Complainant asserts that Respondent is not licensed, or otherwise authorized, to use the IHERB mark. An absence of evidence combined with a lack of authorization can show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii).
Accordingly, the Panel finds that Respondent is not commonly known by the <iherblife.com> domain name under Policy ¶ 4(c)(ii).
Complainant alleges that Respondent fails to use the <iherblife.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is used to sell nutritional supplements in competition with Complainant. Complainant has provided former screenshots, in Annex E, showing that the domain was used to redirect to a third party to make such sales, as well as current screenshots, in Annex G, showing direct sale of such products. Complainant has also provided evidence of its own sale of such items in Annex H.
As the Panel finds that Respondent is using the domain to compete with Complainant, it finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
As such, Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel finds that the Respondent has engaged in bad faith use and registration. Complainant alleges that Respondent uses <iherblife.com> domain name in bad faith because it uses the resolving website to compete with Complainant by taking advantage of the confusion of Internet users seeking Complainant. Complainant has provided former screenshots, in Annex E, showing that the domain was used to redirect to a third party to make such sales, as well as current screenshots, in Annex G, showing direct sale of such products. Complainant has also provided evidence of its own sale of such items in Annex H. Such competitive use is sufficient to find bad faith under Policy ¶ 4(b)(iv). Ass such, the Panel finds that Respondent uses the <iherblife.com> domain in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant alleges that Respondent registered the <iherblife.com> domain name in bad faith because it did so with actual knowledge of Complainant’s rights in the IHERB mark. Complainant argues that because of Respondent’s use of the website, sale of products in competition with Complainant, Respondent has demonstrated having been aware of Complainant’s rights.
The Panel finds that under a totality of the circumstances, the Responded had actual knowledge of Complainant’s interests in the trademark IHERB and, therefore, that the Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <iherblife.com> domain name transferred to the Complainant from the Respondent.
Kenneth L. Port, Panelist
Dated: December 3, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page