Ashlee Silva v. NORMAN FLECHA / STRAIGHTALK
Claim Number: FA1802001770436
Complainant is Ashlee Silva (“Complainant”), Florida, USA. Respondent is NORMAN FLECHA / STRAIGHTALK (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <curedbombdessert.com> and <curedbombdesserts.info>, registered with Godaddy.Com, Llc.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2018; the Forum received payment on February 5, 2018.
On February 8, 2018, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <curedbombdessert.com> and <curedbombdesserts.info> domain names are registered with Godaddy.Com, Llc and that Respondent is the current registrant of the names. 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 February 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2018 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@curedbombdessert.com, postmaster@curedbombdesserts.info. Also on February 14, 2018, 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 March 9, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 names be transferred from Respondent to Complainant.
A. Complainant
Trademark/Service Mark Information: Rule 3(b)(viii).
Word Mark: Cured Bomb Desserts
Mark Drawing code: (4) standard character mark
IC 030. US 046. G & S: Cakes; candy; chocolate candies; chocolate chips; chocolate covered cookies; chocolate covered popcorn; chocolate covered pretzels; cup cakes; popcorn; sweets. FIRST USE: 20161123. FIRST USE IN COMMERCE: 20161123
FACTUAL AND LEGAL GROUNDS
[a.] Specify in the space below the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which Complainant has rights. UDRP Rule 3(b)(ix)(1); UDRP Policy ¶4(a)(i).
Respondent Norman Flecha has been infringing my trademark “Cured Bomb Desserts” from 07/21/2017 to present. Respondent is making false medical claims and has caused a tremendous impact to my production, and my companies reputation. Customers continuously reach out to me to complain about not receiving their products, not being able to get in contact with whomever they placed their order with, and accusing the company of scamming. I have received multiple questions on how to use this product for seizures and other ailments, which is not the intended use of these products. Without a doubt; my business will continue to suffer if customers are trying to reach Respondent and him falsely claiming my trademark and owner of this business.
[b.] Specify in the space below why Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii). The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(c).
Respondent should have no rights or legitimate interests in the domain name. Norman Flecha is capitalizing on the reputation on Complainant’s trademark. I did not consent Norman Flecha to use this trademark nor is there any documentation approving him to do so.
[c.] Specify in the space below why the domain name(s) should be considered as having been registered and being used in bad faith. UDRP Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii). The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(b).
Under the Policy, an offer to sell the domain name for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name is not only evidence of, but conclusively establishes that, the domain name has been registered and is being used in bad faith. See UDRP, paragraph 4(b)(i)(emphasis added).
Respondent indicated that the domain name was indeed for sale and I can purchase it on godaddy.com for 5,000. Which is far above the typical annual operating costs of registering and maintain a similar domain name.
The domains registered are being used in bad faith with the company trademark Cured Bomb Desserts and products. The claims on the website establish that the products are drugs under section 201(g)(1)(B) of the Federal Food, Drug, and Cosmetic Act (the Act) [21 U.S.C. 321(g)(1)(B)] because they are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease. As explained further below, introducing or delivering these products for introduction into interstate commerce for such uses violates the Act. You can find the Act and FDA regulations through links on FDA’s home page at www.fda.gov.
Examples of some of the website claims that provide evidence of it being used in bad faith as he is making false medical claims that the products are intended for use as drugs include:
-It is a non-psychoactive compound that is a powerful anti-inflammatory, anti-spasmodic, and anti-seizure medication.
-The activation of adenosine receptors by CBD candy gives the anti-anxiety & anti-inflammatory effects of Cannabidiol Oil.
According to the FDA the products are not generally recognized as safe and effective for the above referenced uses and, therefore, these products are “new drugs” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from FDA, as described in sections 301(d) and 505(a) of the Act [21 U.S.C. 331(d), 355(a)]. FDA approves a new drug on the basis of scientific data and information demonstrating that the drug is safe and effective.
A drug is misbranded under section 502(f)(1) of the Act [21 U.S.C. 352(f)(1)] if the drug fails to bear adequate directions for its intended use(s). “Adequate directions for use” means directions under which a layperson can use a drug safely and for the purposes for which it is intended (21 CFR 201.5). Prescription drugs, as defined in section 503(b)(1)(A) of the Act [21 U.S.C. 353(b)(1)(A)], can only be used safely at the direction, and under the supervision, of a licensed practitioner.
Further, it is a prohibited act under section 301(ll) of the Act (21 U.S.C. 331(ll)) to introduce or deliver for introduction into interstate commerce any food to which has been added a drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public, unless the drug was marketed in food before any substantial clinical investigations involving the drug were instituted. The existence of substantial clinical investigations regarding CBD has been made public. Based on available evidence, FDA has concluded that section 301(ll) prohibits the introduction into interstate commerce of any food to which CBD has been added. According to your product labeling, “Edibles Sour Watermelon gummies candy sweets 60mg” (with CBD). Therefore, the introduction or delivery for introduction into interstate commerce of those products is a prohibited act under section 301(ll) of the Act.
In conclusion Cured Bomb Desserts’ products to make false medical claims that can put my business in jeopardy and Norman Flecha is using the domains to capitalize off the trademark not registered to him.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, Respondent submitted an email which read:
I have removed everything to do with this company.
My website has been modified accordingly to represent that i no longer have any of the products, images, logos.
Brand new website had been created.
Hope this is enough.
(1) the domain names registered by Respondent are NOT identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Complainant failed to prove Respondent has no rights or legitimate interests in respect of the domain names; and
(3) the domain names have NOT been registered and 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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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(f), 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 (Forum July 31, 2000) (holding that 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.”).
Complainant is a self-represented person who could have used professional assistance in this Proceeding.
Initially, Complainant failed to assert any rights in the CURED BOMB DESSERTS mark. Complainant provided a copy of the United States Patent and Trademark Office (“USPTO”) registration for the mark (e.g. Reg. No. 5,157,064, registered Mar. 7, 2017). Normally, this Panel would be a little lenient, but Complainant’s deficiencies are too great to be overcome without additional submissions. The annex listing the exhibits claims the trademark was registered to Complainant. The mark is actually registered to Cured Bomb Desserts, LLC. The relationship between Complainant and Cured Bomb Desserts, LLC is not explained. The reason why Complainant is allowed to assert the rights of Cured Bomb Desserts, LLC is not explained. Therefore, Complainant has failed to prove there is a mark in which COMPLAINANT has rights under Policy ¶4(a)(i). Complainant may not assert the rights of a third party (such as Cured Bomb Desserts, LLC) without some kind of authorization to do so.
While Complainant failed to make a Policy ¶4(a)(i) argument about how the <curedbombdessert.com> and <curedbombdesserts.info> domain names are identical or confusingly similar to the CURED BOMB DESSERTS mark, the Panel could easily construct such an argument…except for the fact Complainant has demonstrated no rights in the CURED BOMB DESSERTS mark.
The Panel finds Policy ¶4(a)(i) NOT satisfied.
Complainant fails to make Policy ¶¶4(c)(i) and (iii) arguments about Respondent’s failure to use the <curedbombdessert.com> and <curedbombdesserts.info> domain names in connection with a bona fide offer of goods and services or for a legitimate noncommercial or otherwise fair use. Complainant does not even provide any evidence how the <curedbombdesserts.info> domain name is used. The evidence about how the <curedbombdesserts.com> domain name is being used is so fragmentary the Panel cannot understand it (nor the business Respondent is in).
Complainant has not established a prima facie case in support of its claims Respondent lacks rights and legitimate interests under Policy ¶4(a)(ii). See High Adventure Ministries v. JOHN TAYLOE / VOICE OF HOPE, FA 1737678 (Forum Aug. 9, 2017) (holding that a complainant’s failure to satisfactorily meet its burden suggests respondent has rights and legitimate interests in the domain name under UDRP ¶4(a)(ii)); see also JJ206, LLC v. Erin Hackney, FA 1629288 (Forum Aug. 25, 2015) (finding that a respondent may defeat a complainant’s established case by showing it has made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services).
Furthermore, Respondent has changed its websites at the disputed domain names.
The Panel finds Policy ¶4(a)(ii) NOT satisfied.
Complainant claims Respondent acted in bad faith when it offered the <curedbombdessert.com> and <curedbombdesserts.info> domain names for sale for $5,000.00, which is an amount in excess of the out-of-pocket costs of registration. Offering a disputed domain name for sale for an amount in excess of the out-of-pocket costs of registration indicates bad faith pursuant to Policy ¶4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum Jul. 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶4(b)(i).”). No evidence of the offer was submitted (and to whom it was submitted), although Complainant certified the claims in the complaint are true. In light of the other concerns with the complaint, this Panel does not believe Complainant’s claim without some scintilla of evidence. The Panel cannot find Respondent registered the disputed domain names in bad faith under Policy ¶4(b)(i).
Complainant claims the <curedbombdessert.com> and <curedbombdesserts.info> domain names are being used in bad faith because Respondent’s use violates the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(g)(1)(B). The relevance of the Federal Food, Drug, and Cosmetic Act is not disclosed and Respondent’s claims are not disclosed. Complainant’s argument does not fall within the bounds of the Policy.
The Panel finds Policy ¶4(a)(iii) NOT satisfied.
Having not established all three elements required under the ICANN Policy, the Panel concludes relief shall be DENIED.
Accordingly, it is Ordered the <curedbombdessert.com> and <curedbombdesserts.info> domain names REMAIN WITH Respondent.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, March 19, 2018
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