Natural Life Collections, Inc. v. Shulan Bai
Claim Number: FA2306002051379
Complainant is Natural Life Collections, Inc. (“Complainant”), represented by Isabelle Jung Greenberg of CRGO LAW, Florida, USA. Respondent is Shulan Bai (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <naturallifesale.com>, registered with Name.com, Inc.
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Katalin Szamosi (Presiding Panelist), Lynda M. Braun and Kendall C. Reed as Panelists
Complainant submitted a Complaint to Forum electronically on June 29, 2023; Forum received payment on June 30, 2023.
On July 3, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <naturallifesale.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 24, 2023 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@naturallifesale.com. Also on July 3, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On August 2, 2023, pursuant to Complainant's request to have the dispute decided by a three-member Panel, Forum appointed Katalin Szamosi as the Chair of the three-member Panel along with Lynda M. Braun and Kendall C. Reed as Panelists.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 sells branded goods including, but not limited to, metal key chains, cell phone cases, bracelets, bags, earring holders, and more.
Complainant asserts that it has rights in the two NATURAL LIFE marks through its numerous registrations with the United States Patent and Trademark Office.
Complainant stated that it started using the marks as early as January 1, 1996. Complainant further states its “www.naturallife.com” website started selling Complainant’s goods as early as November 2011.
Complainant argues that the <naturallifesale.com> domain name (hereinafter referred to as: “Disputed Domain”) is confusingly similar to Complainant’s marks because it incorporates the NATURAL LIFE mark in its entirety. The domain includes the generic term “sale” and the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the Disputed Domain. Respondent is not known by “naturallifesale.com”. Respondent is an individual.
Complainant stated that it has not authorized or licensed Respondent to use its NATURAL LIFE mark in the Disputed Domain.
Complainant asserts that Respondent diverts users for commercial gain while purporting to sell unauthorized versions of Complainant’s products, which does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use.
Complainant states that Respondent registered and uses the Disputed Domain in bad faith. Respondent disrupts Complainant’s business and attracts users for commercial gain while creating confusion as to the source and affiliation of the products.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set out below the Panel finds for Complainant and orders a transfer of the <naturallifesale.com> 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 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”).
Complainant asserts rights in the NATURAL LIFE mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,330,326, registered on May 7, 2013). Registration of a mark with the USPTO is generally sufficient in demonstrating rights in the mark under Policy ¶ 4(a)(i).” See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership of a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the NATURAL LIFE mark, the Panel finds that Complainant has rights in a mark under Policy 4(a)(i).
Complainant argues that Respondent’s <naturallifesale.com> domain name is identical or confusingly similar to Complainant’s NATURAL LIFE mark. Generally under Policy ¶ 4(a)(i), adding a generic word along with the “.com” gTLD is insufficient in differentiating from the mark. See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The disputed domain name incorporates Complainant’s NATURAL LIFE mark while appending the generic term “sale” and the “.com” gTLD. Therefore, the Panel finds that the Disputed Domain is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
The Panel accordingly finds that Complainant has satisfied the first element of the Policy.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the Disputed Domain to then enable the burden to, in effect, shift to Respondent to show it does have rights or legitimate interests.
Complainant asserts Respondent is not commonly known by the <naturallifesale.com> domain name, nor has Complainant authorized or licensed Respondent to use its NATURAL LIFE mark in the Disputed Domain. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information identifies Respondent as “Shulan Bai.” Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Disputed Domain in accordance with Policy ¶ 4(c)(ii).
Additionally, Complainant asserts that Respondent is not using the Disputed Domain for any bona fide offering of goods or services, nor any noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), diverting users for commercial gain while purporting to sell unauthorized versions of complainant’s product is not a bona fide offering of goods or services, nor any noncommercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also G.D. Searle & Co. v. Mahony, FA 112559 (Forum June 12, 2002) (finding the respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from the complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i)). The Panel notes that Complainant’s attached screenshot to which the <naturallifesale.com> domain name resolves, shows that Respondent diverts users for commercial gain while purporting to sell unauthorized versions of Complainant’s products.
Since Complainant asserts that the Disputed Domain is used for selling unauthorized versions of products offered by Complainant and Respondent has not rebutted this assertion, it appears that Respondent is not an authorized dealer of Complainant’s products. Therefore, the Panel has not further investigated the bona fide nature as in the Oki Data decision. See WIPO Case No. D2001-0903, Oki Data Americas, Inc. v. ASD, Inc.
Complainant notes that after users placed their orders on Respondent’s website under the Disputed Domain, and received nothing, they subsequently filed complaints with Complainant, believing that the websites were connected.
The Panel accordingly finds that Complainant has satisfied the second element of the Policy.
Complainant argues that Respondent registered and uses the Disputed Domain in bad faith by disrupting Complainant’s business and attracting users for commercial gain. Under Policy ¶ 4(b)(iii), selling unauthorized versions of complainant’s product is a disruption of complainant’s business and evidence of bad faith. See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”). Additionally, attracting users for commercial gain and creating confusion is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Complainant provides evidence that the Disputed Domain resolved to a page displaying for sale what it asserts are unauthorized versions of Complainant’s goods – an assertion that Respondent has not rebutted. Therefore, the Panel finds that Respondent registered and used the Disputed Domain in bad faith per Policy ¶¶ 4(b)(iii) or (iv).
The Panel accordingly finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <naturallifesale.com> domain name be TRANSFERRED from Respondent to Complainant.
Katalin Szamosi (Presiding Panelist), Lynda M. Braun and Kendall C. Reed as Panelists
Dated: August 10, 2023
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