DECISION

 

Nutramax Laboratories, Inc. v. Chiara Sozzi

Claim Number: FA2309002062402

 

PARTIES

Complainant is Nutramax Laboratories, Inc. ("Complainant"), represented by Mary G. Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Chiara Sozzi ("Respondent"), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <deosyl.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 19, 2023; Forum received payment on September 19, 2023.

 

On September 20, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <deosyl.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 September 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 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@deosyl.com. Also on September 20, 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 October 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.

 

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is a United States company, and via affiliates, develops, markets and distributes high quality nutritional supplements, including supplements for humans and animals. Since at least as early as 1992, Complainant and its affiliates have manufactured, marketed, distributed and sold a range of high-quality pet and human supplements to its clients throughout the United States. Complainant is an industry leader in setting and adhering to strict standards for manufacturing and quality control in the field of supplements. Complainant and its affiliates offer a wide array of supplements for humans, dogs, cats, and horses. Its supplements support joint health, liver and immune health, digestive health, skin and coat health and provide other helpful benefits. Complainant's health supplement products are widely regarded as being among the best in the nutritional supplement industry because they are supported by research and studies, contain verified and validated active ingredients from reliable sources, and are manufactured in accordance with strict standards that ensure consumers receive a high-quality, safe, and effective product. One of Complainant's top selling supplements is DENOSYL, which is a liver support pet supplement for dogs and cats. Complainant has rights in the DENOSYL mark through its registration in the United States in 2000.

 

Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its DENOSYL mark because it consists of a misspelling of the mark (the letter "n" is omitted), with the mere addition of the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the DENOSYL mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a webpage displaying pay-per-click third party links to unrelated products and services. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant's business and divert customers for commercial gain by displaying competing advertising links on the resolving website. Respondent engaged in typosquatting. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the DENOSYL mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns rights in the mark DENOSYL dating back to 2000 and uses it to market a nutritional supplement for animals.

 

The disputed domain name was registered in 2022.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website displays pay-per-click third party links to unrelated products and services.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain name consists of a misspelling of Complainant's DENOSYL mark (the letter "n" is omitted), with the mere addition of the ".com" generic top-level domain ("gTLD"). The addition of a gTLD and deletion of a single letter fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) ("Respondent's <morganstanle.com> domain name is confusingly similar to Complainant's MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter 'y' and spacing within the mark, and appends the '.com' gTLD."); see also Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> disputed domain name was confusingly similar to the complainant's MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also Nutramax Laboratories, Inc. v. GRUPO SA Ltd Co / Grupo S.A. Ltd. Co., FA 1985605 (Forum March 30, 2022) ("Many panels have held that minor mis-spellings of complainants' marks constitute typosquatting and support a finding of confusing similarity"); see also Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding the <wllsfago.com> domain name was held to be confusingly similar to the WELLS FARGO mark). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its DENOSYL mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed "Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't" as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Here, the WHOIS information for the disputed domain name lists the registrant as "Chiara Sozzi". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

The disputed domain name resolves to a page displaying advertising links to products and services that are not related to those of Complainant. Where the Respondent uses a domain to redirect users to advertising links, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Accel Holdings L.L.C. v. Milen Radumilo, FA 2051376 (Forum July 28, 2023); Vance Int'l, Inc. v. Abend, FA 970871 (Forum, June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA 1620342 (Forum, July 1, 2015) ("Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively."). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent disrupts Complainant's business and attempts to attract Internet users to its website for commercial gain by displaying advertising links to unrelated products and services. Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant's business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See CFA Properties, Inc. v. El Mariache/ Mariache Corp, FA 1660175 (Forum March 8, 2016) (finding bad faith registration and use because "Respondent used the <chickfilafoundation.org> domain to attract Internet users for commercial gain because the resolving website contains links to third party businesses, from which Respondent presumably receives pay-per-click fees."); see also Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1923264 (Forum Dec. 28, 2020) (finding bad faith when "Respondent uses the disputed domain name to disrupt Complainant's business and attract users for commercial gain through the use of third-party links"); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA 1625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant's business, through which the respondent presumably commercially gained). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (iv).

 

Further, by merely omitting a letter in Complainant's mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. Zhichao Yang, FA 1970133 (Forum Nov. 24, 2021) ("Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse the misspelled trademark laden domain name with its target trademark, a web address, an email address, or some other reference to the mark holder."); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that "[b]y registering the 'typosquatted' domain name in [Complainant's] affiliate program, Respondent profits on the goodwill of [Complainant's] protected marks and primary Internet domain names," which is evidence of bad faith registration and use). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <deosyl.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: October 11, 2023