Universal Protein Supplements Corporation d/b/a Universal v. Lisa Katz / Domain Protection LLC
Claim Number: FA1601001658038
Complainant is Universal Protein Supplements Corporation d/b/a Universal (“Complainant”), represented by Craig A. Beaker of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Lisa Katz / Domain Protection LLC (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <animalpacks.com>, registered with Fabulous.com Pty Ltd.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 26, 2016; the Forum received payment on January 26, 2016.
On January 27, 2016, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <animalpacks.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 January 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2016 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@animalpacks.com. Also on January 28, 2016, 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 February 22, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the ANIMAL PAK mark in connection with various nutrition and fitness-related goods and services, including nutritional supplements and related food products, apparel, headwear, exercise products, bags, bottles and coffee mugs, posters and other printed materials, fitness DVDs, retail and online retail store services for the aforementioned goods, and entertainment and social club services, namely, a sports nutrition and exercise club. Complainant has registered the ANIMAL PAK mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,437,306, registered March 20, 2001), which demonstrates Complainant’s rights in its mark. The Panel is directed to Attached Exhibit B for copies of Complainant’s USPTO registrations. The <animalpacks.com> domain is confusingly similar to Complainant’s mark as it incorporates Complainant’s mark with a phonetically similar spelling while adding an “s” as well as the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses its disputed domain name to divert Internet users away from Complainant’s website and toward Respondent’s website, where it markets goods and services that are directly competitive with Complainant’s business. The Panel is directed to Attached Exhibit H for copies of Respondent’s resolving webpages.
Respondent has registered and is using the disputed domain name in bad faith. First, Respondent’s disputed domain name disrupts and competes with Complainant’s business. Second, Respondent uses the disputed domain name to profit from Internet users’ confusion. Finally, because of Respondent’s widespread use of Complainant’s mark on its resolving website, it is clear that Respondent registered the disputed domain name with at least constructive knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <animalpacks.com> domain name was registered on March 25, 2005.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered and subsisting trademark, that the Respondent has not rights or legitimate interests in or to the disputed domain name, and that the Respondent engaged in bad faith use and registration of the disputed 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."
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(f), 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.”).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered and subsisting trademark. The Complainant registered its rights in or to the trademark ANIMAL PAK at least as early as 2001. The Complainant has adequately plead its rights in or to this trademark.
The Respondent arrives at the disputed domain name by simply deleting a “c” and adding an “s” and the gTLD “.com.” This simply phonetic alterations are not sufficient to distinguish the disputed domain name from the registered trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark.
The Panel also finds that the record does not contain any information that supports any rights or legitimate interests by the Respondent in or to the disputed domain name. Respondent is apparently not commonly known by the disputed domain name. Respondent apparently uses the disputed domain name in an effort to compete with Complainant.
None of the record supports any rights or legitimate interests on behalf of Respondent in or to the disputed domain name. As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel finds that Respondent has registered and used the <animalpacks.com> domain name in bad faith. Respondent’s bad faith is demonstrated by Respondent’s use of the domain name in connection with competing hyperlinks, which disrupt Complainant’s business and which is evidence of bad faith per the language of paragraph 4(b)(iii) of the Policy. Respondent’s use of the disputed domain name is shown at Attached Exhibit H. Hyperlinks which obviously compete with a complainant and its business offerings is evidence of Policy ¶ 4(b)(iii) disruption.
In addition, Respondent’s inclusion of competing hyperlinks presumably nets Respondent commercial gain via click-through fees. Use of competing hyperlinks by a respondent for commercial gain is evidence of Policy ¶ 4(b)(iv) bad faith.
Finally, Complainant also contends that in light of the fame and notoriety of Complainant's ANIMAL PAK mark, it is inconceivable that Respondent could have registered the <animalpacks.com> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel finds that Respondent must have had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
From this record, it is not clear why the Complainant appears to have waiting a decade before bringing this Complaint; however, as the Respondent failed to file a response, the Panel accepts Complainant’s reasonable assertions as true and, therefore, finds in favor of the Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <animalpacks.com> domain name be TRANSFERRED from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: February 22, 2016
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