Herbalife International v.
Shashi Kumar Gantha
Claim Number: FA0702000921779
PARTIES
Complainant is Herbalife International (“Complainant”), represented by Jade
L. Zike, 1901 Ave. of the Stars, Ste. 1600,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <herballifeweightlossproduct.com>,
registered with Go Daddy Software, 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.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on February 21, 2007; the
National Arbitration Forum received a hard copy of the Complaint on February 26, 2007.
On February 22, 2007, Go Daddy Software, Inc. confirmed by e-mail to
the National Arbitration Forum that the <herballifeweightlossproduct.com>
domain name is registered with Go Daddy
Software, Inc. and that Respondent is the current registrant of the
name. Go
Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 February 28, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of March 20, 2007 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@herballifeweightlossproduct.com
by e-mail.
A timely electronic Response was received on March 20, 2007, however as Respondent did not submit a hard copy of its
Response, the Response is considered deficient pursuant to ICANN Rule 5(a). In the interests of justice and the efficient
administration of this proceeding, the Panel will nonetheless give due
consideration to the Response.
On March 27, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Since 1980, Complainant has sold high-quality dietary and nutritional
supplements to consumers worldwide.
Complainant holds four HERBALIFE trademarks registered with the United
States Patent and Trademark Office, including that associated with registry
number 1,254,211, issued October 18, 1983.
Respondent registered the disputed domain name <herballifeweightlossproduct.com>
in 2000 and renewed that registration in 2007.
The contested domain name is confusingly similar to Complainant’s mark
in that it contains the mark in its entirety and merely adds an extra “l” and
the generic terms “weightloss” and “product” as well as the top level domain
indicator “.com”.
Respondent has no right to or legitimate interest in the disputed
domain name.
The website to which Respondent’s domain name resolves advertises
products and services that compete directly with those of Complainant.
Respondent has not used the contested domain name in connection with
any bona fide offering of goods or
services.
Respondent is not commonly known by the contested domain name.
Respondent’s domain name creates a likelihood of confusion with
Complainant’s mark.
Respondent has registered and uses the disputed domain name in bad
faith.
B. Respondent
By e-mail addressed to the National Arbitration Forum and dated March
10, 2007, Respondent did not contest the allegations of the Complaint, but expressed
its willingness to permit the transfer of the disputed domain name to
Complainant without the need for further proceedings.
FINDINGS
Complainant’s uncontested
allegations justify the following findings:
(1) the domain name registered by Respondent is
confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights or legitimate
interests in respect of the domain name; and
(3) the same domain name was registered and is being
used by Respondent in bad faith.
Respondent’s Response to the Complaint herein
justifies a further finding that the parties have agreed to an immediate
transfer of the disputed domain name from Respondent to Complainant without a
need for further proceedings.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the Complainant must prove
each of the following three elements to obtain an order that a domain name
should be cancelled or transferred:
i.
the
domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights;
ii.
Respondent
has no rights or legitimate interests in respect of the domain name; and
iii.
the domain name
has been registered and is being used in bad faith.
DECISION
Complainant has established by its uncontested allegations all three of
the elements required to be proven under the ICANN Policy.
The parties have stipulated in writing to an immediate transfer of the
disputed domain name from Respondent to Complainant.
Policy ¶ 3(a) provides for the
transfer of a domain name registration upon the written instructions of the
parties to a UDRP proceeding without the need for otherwise required findings
and conclusions (see Malev Hungarian
Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum
Therefore, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <herballifeweightlossproduct.com>
domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 7, 2007
Click Here to return
to the main Domain Decisions Page.
Click
Here to return to our Home Page
National
Arbitration Forum