Herbalife International of America, Inc. v. Ron Mauldin
Claim Number: FA0612000862849
Complainant is Herbalife International of America, Inc. (“Complainant”), represented by Jade
L. Zike, of Sheppard Mullin Richter & Hampton LLP,
1901 Ave. of the Stars,
REGISTRAR
The domain name at issue is <herbalifesurvivors.com>, registered with Go Daddy Software, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <herbalifesurvivors.com> domain name is confusingly similar to Complainant’s HERBALIFE mark.
2. Respondent does not have any rights or legitimate interests in the <herbalifesurvivors.com> domain name.
3. Respondent registered and used the <herbalifesurvivors.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Herbalife International of America, Inc., is a
well-known, multi-level marketing provider of dietary supplements. In connection with the provision of these
services, Complainant has registered a number of trade and service marks with
the United States Patent and Trademark Office (“USPTO”) including the HERBALIFE
mark (Reg. No. 1,254,211 issued
Respondent registered the <herbalifesurvivors.com>
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."
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
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.
Complainant asserts rights in the HERBALIFE mark through
registration with the USPTO. The Panel
finds that Complainant’s registration and use of the HERBALIFE mark is
sufficient to establish rights pursuant to Policy ¶ 4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum
Complainant contends that Respondent’s <herbalifesurvivors.com> domain name
is confusingly similar to Complainant’s mark.
Respondent’s disputed domain name features Complainant’s entire
HERBALIFE mark and adds the generic term “survivors.” The Panel finds that the addition of generic
terms that relate to Complainant’s business to an otherwise identical mark
fails to sufficiently distinguish a domain name from a mark pursuant to Policy
¶ 4(a)(i). See Am. Online Inc. v.
Neticq.com Ltd., D2000-1606 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or legitimate
interests in the <herbalifesurvivors.com>
domain name. In instances where
Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the
burden shifts to Respondent to set forth concrete evidence that it does possess
rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Complainant contends that Respondent is using the disputed
domain name to resolve to a website that features a link to Respondent’s own
website, which features information on a multi-level marketing business model
that competes with Complainant’s business model. The Panel finds that Respondent’s use is
neither a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See
Additionally, Complainant contends
that Respondent is neither commonly known by the <herbalifesurvivors.com>
domain name nor authorized to register domain names featuring Complainant’s
HERBALIFE mark in any way. Without
evidence suggesting otherwise, the Panel finds that Respondent has not
established rights or legitimate interests in accordance with Policy ¶
4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <herbalifesurvivors.com>
domain name to operate a website that provides Internet users with a link to a
site that offers information on producing a multi-level marketing business
model that competes with Complainant’s business model. The Panel finds that Respondent’s use
constitutes a disruption of Complainant’s business and evinces bad faith
pursuant to Policy ¶ 4(b)(iii). See SR Motorsports v. Rotary Performance, FA
95859 (Nat. Arb. Forum
Respondent’s use will likely cause confusion as to Complainant’s
sponsorship of and affiliation with the resulting websites. The Panel finds that such use of a domain
name for Respondent’s own commercial gain is additional evidence of
Respondent’s bad faith registration and user pursuant to Policy ¶
4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt.,
FA 95650 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <herbalifesurvivors.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 23, 2007
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