Nature’s Power Nutraceuticals Corp D/B/A NP Nutra v. Dinh Hiep
Claim Number: FA2205001996025
Complainant is Nature’s Power Nutraceuticals Corp D/B/A NP Nutra (“Complainant”), represented by Naimah Duporte of Beckage PLLC, New York, USA. Respondent is Dinh Hiep (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <npnutra.com>, registered with GMO Internet, Inc. d/b/a Onamae.com.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2022; the Forum received payment on May 11, 2022. This Complaint was submitted in English.
On May 16, 2022, GMO Internet, Inc. d/b/a Onamae.com confirmed by e-mail to the Forum that the <npnutra.com> domain name is registered with GMO Internet, Inc. d/b/a Onamae.com and that Respondent is the current registrant of the name. GMO Internet, Inc. d/b/a Onamae.com has verified that Respondent is bound by the GMO Internet, Inc. d/b/a Onamae.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 May 19, 2022, the Forum served the Complaint and all Annexes, including a Japanese and English language Written Notice of the Complaint, setting a deadline of June 8, 2022 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@npnutra.com. Also on May 19, 2022, the Japanese and English language 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 June 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the Respondent is conversant and proficient in the English language. Therefore, after considering the circumstance of the present case including the fact that Respondent has failed to object to going forward in English, the Panel concludes that the instant proceeding should be conducted in English.
A. Complainant
Complainant contends as follows:
Complainant, Nature’s Power Nutraceuticals Corp D/B/A NP Nutra, offers health supplements.
Complainant has rights in the NP NUTRA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <npnutra.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the NP NUTRA mark in its entirety and adds the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <npnutra.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the NP NUTRA mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent used fraudulent means to obtain a domain formerly owned by Complainant.
Respondent registered and uses the <npnutra.com> domain name in bad faith. Respondent has previously engaged in bad faith registration of a domain name. Respondent registered the at-issue domain name in order to disrupt Complainant’s business. Respondent participated in domain hijacking.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the NP NUTRA mark.
Complainant’s rights in NP NUTRA existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent acquired the at-issue domain name through fraud.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its NP NUTRA trademark. Such registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <npnutra.com> domain name consists of Complainant’s NP NUTRA trademark with its space deleted, followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s <npnutra.com> trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <npnutra.com> domain name is confusingly similar or identical to Complainant’s trademark. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also, Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of <npnutra.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances or other circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Dinh Hiep” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <npnutra.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent obtained the confusingly similar at-issue domain name by deception. Complainant’s was the prior registrant of the at-issue domain name; the domain name was then by a series of illegal transactions transferred to Respondent without Complainant’s consent. Respondent’s acquisition of Complainant’s domain name through criminal activity negates the possibility of Respondent’s use of the domain name for either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or for a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii). Notably, such foul activity indicates that Respondent lacks rights and legitimate interest in the at-issue domain name. See Raise Labs, Inc. v. Hong young jin, FA 1685247 (Forum Sept. 1, 2016) (“[The disputed domain name was] registered by Complainant on or about September 20, 2013. The registration was inadvertently allowed to lapse and was registered by Respondent at a subsequent date… As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Complainant notes that Respondent previously engaged in bad faith registration of a domain name as the email address Respondent associated with the at-issue domain name was used in association with another unlawful domain name hijacking. Respondent’s pattern of cybercrime suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(i).
Next, Respondent activity disrupts Complainant’s business. The virtual theft of Complainant’s domain name by Respondent has caused Complainant’s legitimate domain name and website to be inaccessible by Complainant and others. Respondent’s bad faith registration and use of the at-issue domain name is here indicated under Policy ¶¶ 4(b)(ii) and 4(b)(iii).
Moreover, Respondent acquired the <npnutra.com> domain name by theft. Respondent participated in the fraudulent transfer of Complainant’s active domain name from Complainant to Respondent. These circumstances surrounding Respondent’s acquisition of the <npnutra.com> domain name independently further indicate Respondent’s bad faith. See Aurbach v. Saronski, FA 155133 (Forum May 29, 2003) (“Where the domain name registration was previously held, developed and used by Complainant, opportunistic registration of the domain name by another party indicates bad faith, absent any justification that illustrates legitimate use.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <npnutra.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 17, 2022
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