Universal Protein Supplements Corporation d/b/a Universal Nutrition v. dave ventures
Claim Number: FA1808001803084
Complainant is Universal Protein Supplements Corporation d/b/a Universal Nutrition (“Complainant”), represented by Tiffany D. Gehrke of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is dave ventures (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <universelnutrition.com> (the “Domain Name”), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 24, 2018; the Forum received payment on August 24, 2018.
On August 27, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <universelnutrition.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 August 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 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@universelnutrition.com. Also on August 29, 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 September 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant is the owner of the mark UNIVERSAL NUTRITION registered, inter alia, in the USA for nutritional supplements with first use recorded as 1977.
The Domain Name registered in 2018 is confusingly similar to Complainant’s mark substituting an ‘e’ for an ‘a’.
Respondent is not commonly known by the Domain Name and is not authorised by Complainant to use a sign confusingly similar to Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name. The Domain Name has been used for a fraudulent e mail scam to impersonate Complainant. This cannot be a bona fide offering of goods or services or a legitimate non commercial fair use. It is bad faith registration and use designed to cause confusion on the Internet and to disrupt Complainant’s business. Respondent’s attempts to impersonate Complainant show that he is aware of Complainant and its business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the mark UNIVERSAL NUTRITION registered, inter alia, in the USA for nutritional supplements with first use recorded as 1977.
The Domain Name registered in 2018 has been used in a fraudulent e mail scam to impersonate Complainant.
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.”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines a misspelling of Complainant’s UNIVERSAL NUTRITION mark (registered, inter alia, in the USA for nutritional supplements with first use recorded as 1977) and the gTLD “.com.” An ‘e’ has been substituted for an ‘a’ which does not distinguish the Domain Name from Complainant’s mark. Registering a domain name that differs from Complainant’s trade mark by one letter does not distinguish a domain name from that mark.
The gTLD “.com” does not serve to distinguish a Domain Name from a complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in an attempted fraudulent e mail scheme to impersonate Complainant. This is designed to be deceptive and confusing and pass off Respondent as Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate fair use.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of the complainant’s mark in an attempted fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4 2016) (finding that the respondent’s use of the disputed domain name for fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii)).
In the opinion of the Panelist, the use made of the Domain Name in relation to a fraudulent e mail scam attempt is confusing in that recipients of any such mails would reasonably believe those e mails are connected to or approved by Complainant as a misspelling of Complainant’s trade mark would be used. This mimicking by Respondent of Complainant shows that Respondent was aware of Complainant and its business and rights, and constitutes passing off. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of electronic content on the Internet under Policy ¶ 4(b)(iv). See Qatalyst Partners L.P. v Devinmore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e mail address to pass itself off as the complainant is evidence of bad faith registration and use).
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the complainant’s mark and be taken to the respondent’s site is registration and use in bad faith).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and 4(b)(iv). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <universelnutrition.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 21, 2018
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