Academy of Nutrition and Dietetics v. syed nafeesa
Claim Number: FA2012001925287
Complainant is Academy of Nutrition and Dietetics (“Complainant”), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Illinois, USA. Respondent is syed nafeesa (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eatright.fit> (‘the Domain Name’), registered with GoDaddy.com, LLC.
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 December 16, 2020; the Forum received payment on December 16, 2020.
On December 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <eatright.fit> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 December 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2021 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@eatright.fit. Also on December 21, 2020, 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 January 14, 2021 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trade mark EAT RIGHT (logo) registered, inter alia, in the USA for food related educational services with first use recorded as 2008. It owns eatright.org.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark adding only the gTLD “.fit”.
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for competing pay per click links which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is bad faith registration and use. The page also invites interest for purchase of the Domain Name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark EAT RIGHT (logo) registered, inter alia, in the USA for food related educational services with first use recorded as 2008. It owns eatright.org.
The Domain Name registered in 2020 has been used for competing pay per click links and has been offered for sale generally on the Internet.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of the Complainant's EAT RIGHT mark (which is registered, inter alia, in USA for food educational services with first use recorded as 2008) merely adding the gTLD “.fit”.
The gTLD “.fit” does not serve to distinguish the Domain Name from the 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 holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the 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 Sept. 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 Respondent has used the site attached to the Domain Name to link to third party businesses that compete with the Complainant. He does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).
Further the page attached to the Domain Name invites interest to purchase the name suggesting it is for sale generally. Attempts to sell a disputed domain name for more than out of pocket costs of acquisition of a domain name may be evidence that respondent lacks rights or legitimate interests in the disputed domain name per Policy ¶ 4(a)(ii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark.
In the opinion of the Panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it provides links to competing services under a domain name containing the Complainant’s mark. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088 (Forum July 10, 2015) re diversion to pay per click links.
Further it appears the Domain Name is being offered for sale generally. Offering a domain name for sale for a sum in excess of out of pocket expenses is registration and use in bad faith. See DIRECTTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018).
As such, the Panel holds that the 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 Policy ¶¶¶ 4(b)(i), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eatright.fit> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 15, 2021
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