DECISION

 

Abbott Diabetes Care Inc. v. Managed Domains Support / Web Hosting Logic, Inc.

Claim Number: FA1503001610272

 

PARTIES

Complainant is Abbott Diabetes Care Inc. (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA.  Respondent is Managed Domains Support / Web Hosting Logic, Inc. (“Respondent”), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <freestylelitemeter.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on March 19, 2015; the Forum received payment on March 19, 2015.

 

On March 20, 2015, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <freestylelitemeter.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name.  PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On March 20, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 9, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@freestylelitemeter.com.  Also on March 20, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

 

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

 

On April 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

    1. Complainant uses the FREESTYLE LITE mark in connection with its diabetes management products and services.
    2. Complainant has registered the FREESTYLE LITE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,427,434, registered May 13, 2008).
    3. Respondent’s <freestylelitemeter.com> domain name is confusingly similar to Complainant’s mark because it incorporates the FREESTYLE LITE mark in its entirety and merely adds the descriptive term, “meter”, and the “.com” generic top-level domain (“gTLD”), and eliminates spacing between words.
    4. Respondent is not commonly known by the disputed domain name.
    5. Complainant has not given Respondent authorization to register the <freestylelitemeter.com> domain name or any variant of the FREESTYLE LITE mark.
    6. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use.
    7. Rather, Respondent’s <freestylelitemeter.com> domain name resolves to a page which includes pictures of Complainant’s products and purports to direct Internet users via a hyperlink to a third party website which offers products in direct competition with Complainant’s products.
    8. Further, Respondent is likely receiving click-through fees from the competing hyperlink.
    9. Respondent’s use of a competing hyperlink which directs Internet users to a competitor of Complainant’s, while presumably gaining click-through fees is evidence of bad faith.
    10. Respondent is likely gaining click-through fees from Internet users who come across the disputed domain name looking for Complainant’s website, thereby profiting from the goodwill associated with Complainant’s FREESTYLE LITE mark.
    11. Because of the fame and notoriety associated with the FREESTYLE LITE mark and the related character of the content found in the resolving page of the <freestylelitemeter.com> domain name, Respondent registered the domain name in July 2010 with actual or constructive knowledge of the FREESTYLE LITE mark and Complainant’s rights in the mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Respondent has consented to the transfer of the domain name.

 

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."

 

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.

 

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.”).

 

Preliminary Issue:  Consent to Transfer

 

The National Arbitration Forum was copied on documentation submitted from Respondent to the Forum and Complainant, which is identified in this proceeding as “Other Correspondence.”  In this document, Respondent consents to the transfer of the domain name.  Respondent states as follows:

 

The transfer of this domain is not being disputed.   You can simply proceed with the transfer and close this case.  If you need us to do anything else, please let me know.


Because Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <freestylelitemeter.com> domain name.  See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).

 

DECISION

The Respondent having consented to the transfer of the <freestylelitemeter.com> domain name, the Panel concludes that relief shall be GRANTED.

 

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

 

 

Bruce E. Meyerson, Panelist

Dated:  April 27, 2015

 

 

 

 

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