DECISION

Wellness International Network, LTD v Apostolics.com

Claim Number: FA0012000096189

PARTIES

The Complainant is Wellness International Network, Ltd , Plano, TX, USA ("Complainant") represented by Dana M Campbell, Ownes, Clary & Aiken, L.L.P. The Respondent is Apostolics.com, Commerce, TX, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is "wellness-international.com" registered with Network Solutions, Inc.

PANEL

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 a panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 4, 2000; The Forum received a hard copy of the Complaint on November 27, 2000.

On December 11, 2000, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "wellness-international.com" is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 13, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 2, 2000 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 Respondentís registration as technical, administrative and billing contacts, and to postmaster@wellness-international.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.

On January 5, 2001, pursuant to Complainantís request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina 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." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forumís Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from the Respondent.

RELIEF SOUGHT

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

PARTIESí CONTENTIONS

    1. Complainant alleges the following:

    1. Complainant owns a registered trademark on Wellness International Network, Ltd., for printed matter, including business forms, product brochures, product catalogs and health, nutrition and personal education pamphlets. Complainant also owns a registered service mark on WIN, which is used in all aspects of product merchandising of health and nutrition products through direct sales and multilevel marketing channels. The trademark and service mark owned by Complainant are referred to herein collectively as the "WIN Marks."
    2. Since 1996, Complainant has actively advertised and promoted its trademark and service mark through a web site which uses the acronym for Wellness International Network as the essential element of the domain name -- winltd.com.
    3. The domain name wellness-international.com has as its essential element a derivation of Complainantís registered trademark. Therefore, the consumers seeking to buy nutritional products directly from Complainant would be very likely to be diverted from the Complainantís site, winltd.com, to Respondentís site, wellness-international.com. Consumers would be confused as to the source, sponsorship, affiliation or endorsement of Respondentís web site.
    4. The domain name in dispute was registered by Respondent at the direction of David McCurrach. Mr. McCurrach is an independent distributor of Complainant engaged in the sale of nutritional products manufactured for and/or distributed by Complainant bearing the WIN Marks. Respondent registered the domain name for Mr. McCurrach only after he became an independent distributor of Complainant by executing a Distributor Application and Agreement.
    5. Mr. McCurrach registered the domain name for no purpose other than (a) attracting Internet users by creating a likelihood of confusion with the WIN Marks as to the source, sponsorship, affiliation or endorsement of its web site, (b) selling the domain name to another independent distributor of Complainant seeking to so attract Internet users, or (c) selling the domain name to Complainant. Indeed, Mr. McCurrach offered to sell the domain name to Complainant for $60,000. Mr. McCurrach has failed to use the web site for any other purpose.
    6. While the Rules and Regulations promulgated by Complainant expressly prohibit such use of the WIN Marks or any derivation thereof, Mr. McCurrach has failed and refused to respond to Complainantís demand that he discontinue the unauthorized use of the derivation of the WIN Marks.

B. No submission from Respondent has been received by the Panel.

FINDINGS

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. Rule 14.

In this case, Respondent has not submitted a response, and therefore this Panelist may infer, for the purposes of this decision, that the averments in the complaint are true. See 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").

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 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.

Identical and/or Confusingly Similar

The Respondentís domain name, wellness-international.com, is confusingly similar to the Complainantís Wellness International Network trademark. See General Electric Co. v. Bakhit, D2000-0386 (WIPO June 22, 2000) (finding that placing a hyphen in domain name between "General" and "Electric" is confusingly similar to Complainantís mark); Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the Complainantís "Asprey & Garrard" and "Miss Asprey" marks).

Rights or Legitimate Interests

Respondent registered the domain name after Mr. McCurrach, who is administrative contact of Respondent, became a distributor of Complainant. Respondent is not commonly known by this domain name. Policy ∂ 4(c)(ii). Further, Respondent has neither made a bona fide offering of goods and services nor a legitimate noncommercial use of the domain name. Policy ∂ 4(c)(i), (iii). See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept 27, 2000) (finding that "unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services").

Registration and Use in Bad Faith

Complainant contends that Respondentís registering the domain name for the purpose of selling it for $60,000, which is in excess of out of pocket costs, is evidence of bad faith registration and use. Policy ∂ 4(b)(i). See Dollar Rent A Car Systems Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that Respondent demonstrates bad faith by registering the domain name for the purpose of transferring the domain name in the amount of $3,000, an amount in excess of out of pocket costs); Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000) (finding bad faith where Respondent offered to sell the Domain Name to the Complainant for $10,000).

Further, Complainant contends that Respondent registered the domain name to attract, for commercial gain, Internet users to an on-line location, by creating a likelihood of confusion with the Complainantís marks as to the source, sponsorship, endorsement, or affiliation of the website, which evidences Respondentís bad faith registration and use. Policy ∂ 4(b)(iv). See State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the Respondent registered the domain name <statefarmnews.com> in bad faith because Respondent intends to use Complainantís marks to attract the public to the web site without permission from Complainant); Drs. Foster & Smith, Inc. v Jaspreet Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the Respondent directed Internet users seeking the Complainantís site to its website, consequently the Respondent has violated Policy ∂4(b)(iv) by attracting Internet users to its website, for commercial gain, by creating a likelihood of confusion with the Complainantís mark).

Moreover, Respondent registered the domain name after Mr. McCurrach, who is administrative contact of Respondent, became a distributor of Complainant. Respondentís actual knowledge of the Complainantís trademark evidences his registration and use of domain name in bad faith. See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum, April 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "wellness-international.com" be transferred from the Respondent to the Complainant.

 

Honorable Harold Kalina, (Ret.), Panelist

Dated: January 16, 2001

 

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