DECISION

 

Zynex Medical, Inc. v. New Ventures Services, Corp

Claim Number: FA1805001788042

 

PARTIES

Complainant is Zynex Medical, Inc. (“Complainant”), represented by Kyle T. Ross, Michigan, USA.  Respondent is New Ventures Services, Corp (“Respondent”), Pennsylvania, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <neuromove.com>, registered with Network Solutions, LLC.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 22, 2018; the Forum received payment on May 22, 2018.

 

On May 23, 2018, Network Solutions, LLC confirmed by e-mail to the Forum that the <neuromove.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name.  Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 May 24, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 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@neuromove.com.  Also on May 24, 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 June 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant:

1.    Complainant is in the business of manufacturing, marketing, and selling medical devices for the electrotherapy and stroke rehabilitation markets with its primary business location in Englewood, CO.  Complainant has rights in the NEUROMOVE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,149,726, registered May 29, 2012). See Compl. Annex C. Respondent’s <neuromove.com> domain name is identical to Complainant’s mark.

2.    Respondent has no rights or legitimate interests in the <neuromove.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name in connection with a parked webpage which generates click-through fees. See Compl. Annex D.

3.    Respondent registered and uses the <neuromove.com> domain name in bad faith. Respondent attempts to sell its portfolio of domain names for a profit. See Compl. Annex E. Further, Respondent uses the domain name to disrupt Complainant’s business, and attempts to commercially profit from a likelihood of confusion. See Compl. Annex D.

 

B.   Respondent:

1.    Respondent failed to submit a response in this proceeding.

 

FINDINGS

1.    Respondent’s <neuromove.com> domain name is confusingly similar to Complainant’s NEUROMOVE mark.

2.    Respondent does not have any rights or legitimate interests in the <neuromove.com> domain name.

3.    Respondent registered or used the < neuromove.com > domain name in bad faith.

 

DISCUSSION

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(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 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.”).

 

Identical and/or Confusingly Similar

Complainant claims rights in the NEUROMOVE mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,149,726, registered May 29, 2012). See Compl. Annex C. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the NEUROMOVE mark for the purposes of Policy ¶ 4(a)(i).

 

Complainant next argues that Respondent’s <neuromove.com> domain name is identical to Complainant’s mark. Fully incorporating a mark in a domain name with the addition of a generic top-level domain (“gTLD”) does not sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See F.R. Burger & Associates, Inc. v. shanshan lin, FA 1623319 (Forum July 9, 2015) (holding, “Respondent’s <frburger.com> domain name is identical to Complainant’s FRBURGER mark because it differs only by the domain name’s addition of the top-level domain name “.com.”). The Panel therefore finds that the <neuromove.com> domain name is identical to the NEUROMOVE mark under Policy ¶4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant contends that Respondent has no rights or legitimate interests in the <neuromove.com> domain name.  Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “New Ventures Services, Corp” as the registrant.  See Compl. Annex F. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the NEUROMOVE mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and Complainant has not given Respondent permission to use the mark in any manner. Accordingly, the Panel agrees that Respondent is not commonly known by the <neuromove.com> domain name under Policy ¶ 4(c)(ii).

 

Complainant also argues that Respondent uses the disputed domain name to resolve in a website that contains a series of hyperlinks redirecting users to services that directly compete with Complainant, presumably to commercially benefit from pay-per-click fees. Using a domain name to offer links to services in direct competition with a complainant generally does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant.  The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the resolving webpage, which appears to display links such as “Electrical Stimulation” and “Physical Therapy Software.” See Compl. Annex D. Accordingly, the Panel may find that Respondent uses the domain name to display competing hyperlinks, failing to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).

 

Registration and Use in Bad Faith

Complainant claims that Respondent offers the <neuromove.com> domain name for sale. Offering a confusingly similar domain name for sale can evince bad faith registration under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 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).”). Complainant provides a screenshot of a domain name, <newvcorp.com> where Respondent appears to offer its “premium domains” for sale. See Compl. Annex E. It is unclear whether the domain name currently at issue is included in those domains. Accordingly, the Panel uses Respondent’s offering of the domain name for sale to the general public as evidence of bad faith registration per Policy ¶ 4(b)(i).

 

Additionally, Complainant argues that Respondent registered and uses the <neuromove.com> domain name to disrupt Complainant’s business, and attempts to commercially profit from a likelihood of confusion. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). As mentioned above, Complainant provides a screenshot of the resolving webpage, which appears to display links such as “Electrical Stimulation” and “Physical Therapy Software.” See Compl. Annex D. Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <neuromove.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  July 2, 2018