national arbitration forum

 

DECISION

 

Hallelujah Acres, Inc. v. Anthony Janus

Claim Number:  FA0507000520632

 

PARTIES

 

Complainant, Hallelujah Acres, Inc. (“Complainant”), is represented by Neil M. Batavia of Dority & Manning, Attorneys At Law, P.A., Post Office Box 1449, Greenville, SC 29602-1449.  Respondent is Anthony Janus (“Respondent”), #30 – 1785 Queen St. E, Brampton, ON,L6T 4S3, CA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

 

The domain name at issue is <hallelujahdiet.com>, registered with Digup Domains, Inc.

 

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.

 

Louis E. Condon as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 20, 2005; the National Arbitration Forum received a hard copy of the Complaint on July 25, 2005.

 

On July 22, 2005, Digup Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <hallelujahdiet.com> domain name is registered with Digup Domains, Inc. and that Respondent is the current registrant of the name.  Digup Domains, Inc. has verified that Respondent is bound by the Digup Domains, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On July 28, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 17, 2005 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hallelujahdiet.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On  August 24. 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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.”  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.

 

RELIEF SOUGHT

 

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

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <hallelujahdiet.com> domain name is confusingly similar to Complainant’s THE HALLELUJAH DIET mark.

 

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

 

3.      Respondent registered and used the <hallelujahdiet.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, Hallelujah Acres, Inc., provides education, products, services, and other resources to help people improve their health.  Complainant holds a registration for its THE HALLELUJAH DIET mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,648,803 issued November 12, 2002).  Complainant first used the THE HALLELUJAH DIET mark in commerce in 1993 for goods and services relating to providing integrated nutritional, physical, and spiritual information. 

 

Respondent registered the disputed domain name on May 15, 2005.  Respondent’s domain name resolves to a website that provides links to various dietary supplements, some of which are in direct competition with Complainant.  Respondent has also offered to sell the domain name registration for valuable consideration in excess of any out of pocket costs. 

 

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.”

 

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.”).

 

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.

 

Identical and/or Confusingly Similar

 

Complainant’s registration for its THE HALLELJUAH DIET mark with the USPTO is sufficient to establish Complainant’s rights in the mark.  See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

 

Complainant argues that the <hallelujahdiet.com> domain name is confusingly similar to Complainant’s mark.  The disputed domain name wholly incorporates Complainant’s mark and merely deletes the word “the.”  The Panel finds that deleting an article is insufficient to distinguish Respondent’s domain name from Complainant’s mark.  See Buffalo News v. Barry, FA 146919 (Nat. Arb. Forum Mar. 31, 2003) (finding the respondent's <bufalonews.com> domain name confusingly similar to Complainant's THE BUFFALO NEWS mark); see also Antoun v. Truth Squad, FA 114766 (Nat. Arb. Forum Aug. 21, 2002) (stating that the article "the" is "often added only for grammatical purposes, and may be superfluous to the name itself").

 

The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant asserts that Respondent does not have rights or legitimate interests in the <hallelujahdiet.com> domain name.  Complainant’s assertion establishes a prima facie case and shifts the burden to Respondent.  To meet its burden, Respondent must provide the Panel with evidence that it does have rights or legitimate interests in the disputed domain name.  Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):

 

Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.

 

Id.; see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).  The Panel will analyze whether Respondent could meet its burden of establishing rights or legitimate interests for purposes of Policy ¶ 4(a)(ii).

 

Complainant alleges that Respondent is not commonly known by the disputed domain name, but rather by the name “Anthony Janus.”  Without a response from Respondent, the Panel accepts as true Complainant’s allegation that Respondent is not commonly known by the disputed domain name.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).  The Panel concludes that because Respondent is not commonly known by the disputed domain name, it has not established rights or legitimate interests under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

 

Complainant provides evidence that Respondent’s website benefits from the confusing similarity of the <hallelujahdiet.com> domain name by displaying links to diet-related services and receiving pay-per-click fees from Internet users clicking on these links.  Complainant argues that Respondent’s links directly compete with Complainant.  Because Respondent did not respond, the Panel treats Complainant’s arguments as true.  See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed.  In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).  Thus, the Panel concludes that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services for purposes of Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”).

 

Moreover, the Panel finds that Respondent’s offer to sell the disputed domain name registration indicates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).  See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (stating that “Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).

 

Accordingly, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii). 

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s offer to sell the disputed domain name registrations for an excessive price is evidence that Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(i).  See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale).

 

Complainant argues that Respondent is using the disputed domain name to divert Internet users to a website that features links to goods and services relating to dieting and health and to profit from diverting such Internet users to various websites.  The Panel holds Respondent is creating a likelihood of confusion for its own commercial gain.  The Panel concludes that such use is evidence of bad faith use and registration under Policy ¶ 4(b)(iv).  See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).

 

DECISION

 

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

 

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

 

 

 

Louis E. Condon, Panelist

Dated:  August 29, 2005