Complainant is Wellness International Network, Ltd., Plano, TX, ("Complainant") represented by Dana M. Campbell, of Owens, Clary & Aiken, L.L.P. Respondent is Amanda Clement d/b/a Wellness International Network, Coconut Grove, FL, ("Respondent").

The domain name at issue is <wellnessinternational.com> registered with Register.com.

On July 23, 2001 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as Panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 13, 2001; the Forum received a hard copy of the Complaint on June 18, 2001.

On June 14, 2001, Register.com confirmed by e-mail to the Forum that the domain name <wellnessinternational.com> is registered with Register.com and that Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.com 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 June 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 10, 2001 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@wellnessinternational.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

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." 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 name be transferred from Respondent to Complainant.

A. Complainant

The <wellnessinternational.com> domain name is confusingly similar to Complainant's federally registered marks.

Respondent has no rights or legitimate interests in the <wellnessinternational.com> domain name.

Respondent has registered and is using the <wellnessinternational.com> domain name in bad faith.

B. Respondent

No Response was received.

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

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:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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 has established its rights to the WIN marks by virtue of its federal trademark and service mark registrations with the United States Patent and Trademark Office. The <wellnessinternational.com> domain name uses much of Complainant's WIN marks and merely omits the final two words, "Network, LTD" from the WIN marks. The deletion of these portions do not defeat Complainant's claim of confusing similarity. See Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to Complainant’s "Wellness International Network").

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Respondent is using the disputed domain name to sell competing products known by a different product name. This does not constitute a bona fide offering of goods as provided under Policy ¶ 4(c)(i). See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods).

Complainant asserts that Respondent is not commonly known by the WIN marks nor the <wellnessinternational.com> domain name pursuant to Policy ¶ 4(c)(ii). There is no evidence in the record to dispute Complainant's assertions. Therefore, Respondent is not commonly known by the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Respondent as noted above, is using the <wellnessinternational.com> domain name to sell goods and services in competition with Complainant. This is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).

In light of the above, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Respondent is using the <wellnessinternational.com> domain name to sell health and nutrition products that directly compete with Complainant's goods and services offered through its WIN marks. Complainant asserts, and there is nothing in the record to refute, that it was Respondent's intention to disrupt Complainant's business by diverting consumers to Respondent's competing web site. It is well established that disrupting a competitor's business is evidence of bad faith pursuant to Policy ¶ 4(b)(iii). See, e.g. Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business).

Complainant further claims that any users would be confused as to the source, sponsorship, affiliation or endorsement of Respondent's site even though once on the Respondent's site a disclaimer appears. Use of a disclaimer on the site does not defeat a claim of confusion. See Ciccone v. Parisi (Madonna.com), D2000-0847 (WIPO Oct. 12, 2000) (finding bad faith despite Respondent's use of a disclaimer because, inter alia, "a disclaimer does nothing to dispel initial interest confusion that is inevitable from Respondent’s actions"). This likelihood of confusion created by the Respondent's web site is further evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See, e.g., Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where 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 Complainant is the source of or is sponsoring the services offered at the site); see also

TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).

Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

Having established all three elements under the ICANN Policy, the Panel concludes that the requested relief should be granted.

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