Healthy Pets Inc. v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA1807001796948
Complainant is Healthy Pets Inc. (“Complainant”), represented by Jeffrey Sonnabend of SonnabendLaw, New York, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <entirelypet.com>, registered with Media Elite Holdings Limited.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 17, 2018; the Forum received payment on July 17, 2018.
On July 18, 2018, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <entirelypet.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 July 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 2018 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@entirelypet.com. Also on July 19, 2018, 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 August 9, 2018, 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, Healthy Pets Inc., operates an online retail store featuring pet supplies and products. Complainant has rights in the ENTIRELYPETS mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,028,993, registered Dec. 13, 2005). See Compl. Ex. 2. Respondent’s <entirelypet.com> domain name is confusingly similar to Complainant’s mark as Respondent purposefully misspells Complainant’s mark in the disputed domain name.
Respondent lacks rights and legitimate interests in the <entirelypet.com> domain name as Respondent’s sole purpose for registration of the disputed domain name is to sew confusion in the market and deceive customers.
Respondent registered and uses the disputed domain name in bad faith as Respondent has no registration of the mark and Respondent’s use of the domain name is to sew confusion in the market and to deceive customers.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on April 20, 2008.
The Panel finds that the disputed domain name is confusingly similar with Complainant’s trademark; however, Complainant has failed to carry its burden of proof to establish that Respondent has no rights or legitimate interests in or to the disputed domain name; and Complainant has failed to carry its burden of proof regarding bad faith.
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 (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, <entirelypet.com>, is confusingly similar with Complainant’s trademark, ENTIRELYPETS. Complainant has adequately plead it rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely deleting an “s” and adding the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel finds, however, that Complainant has failed to carry its burden of proof regarding rights or legitimate interests. Complainant alleges that Respondent has no rights or legitimate interests but it fails to submit any evidence supporting this allegation. An allegation without supporting evidence is not convincing.
Furthermore, Complainant fails to address the other elements of this claim. There is no indication whether Respondent has permission to register the disputed domain name and whether Respondent is commonly known by the disputed domain name.
Complainant merely alleges that Respondent registered the disputed domain name for the sole purpose of “sew[ing] confusion in the market and to deceive[ing] consumers.” Complaint at 7(b). Complainant would have this Panel base its entire decision on this one clause of one sentence with no supporting evidence. The Panel refuses such invitation.
As such, the Panel finds that Complainant has failed to carry its burden of proof regarding this element of a UDRP claim.
The Panel further finds that Complainant has failed to carry its burden of proof regarding the bad faith of Respondent. Complainant’s entire allegation regarding this element states as follows:
Because it is confusingly similar to Complainant’s ENTIRELYPET mark, Respondent has no registration of (nor could it receive registration of) the mark ENTIRELYPET. The sole purpose for Respondent’s use of the domain <entirelypet.com> is to sew confusion in the market and to deceive consumers.
As with the previous element, no evidence is offered to support this allegation. Again, the Complainant would have this Panel transfer the domain name on a mere vague allegation. There are no specifics and no evidence to support this claim. Again, the Panel refuses to accept this invitation to transfer the domain name merely because it happens to be similar to Complainant’s trademark. Complainant seems to forget that the three elements of a UDRP claim are independent and each must be supported by appropriate specific allegations and evidence.
As such, the Panel finds that Complainant has failed to carry its burden regarding bad faith.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <entirelypet.com> domain name remain with Respondent.
Kenneth L. Port, Panelist
Dated: August 9, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page