DECISION

 

Nutramax Laboratories, Inc. v. Mark Meeka

Claim Number: FA2311002072218

 

PARTIES

Complainant is Nutramax Laboratories, Inc. ("Complainant"), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Mark Meeka ("Respondent"), Florida, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <nutramaxproducts.com>, <nutramaxlife.com>, <nutramaxlifedepot.com>, <nutramaximize.com> and <nutramaximizestore.com>, ('the Domain Names') 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.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 22, 2023; Forum received payment on November 22, 2023.

 

On November 22, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <nutramaxproducts.com>, <nutramaxlife.com>, <nutramaxlifedepot.com>, <nutramaximize.com> and <nutramaximizestore.com>, Domain Names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 November 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 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@nutramaxproducts.com, postmaster@nutramaxlife.com, postmaster@nutramaxlifedepot.com, postmaster@nutramaximize.com and postmaster@nutramaximizestore.com. Also on November 27, 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 December 19, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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 Names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.       Complainant

The Complainant's contentions can be summarised as follows:

 

The Complainant is the owner of, inter alia, the mark NUTRAMAX LABORATORIES (registered, inter alia, in the USA for supplements for animals and people with first use recorded as 1991) and other registered marks incorporating NUTRAMAX.

 

The Domain Names registered in 2023 are confusingly similar to the Complainant's NUTRAMAX marks.

 

The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorised by the Complainant.

 

The Domain Names point to competing commercial pay per click links to businesses not connected with the Complainant offering supplements for people and animals. This cannot be a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in bad faith confusing Internet users for commercial gain and disrupting the Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of, inter alia, the mark NUTRAMAX LABORATORIES (registered, inter alia, in the USA for supplements for animals and people with first use recorded as 1991) and other registered marks incorporating NUTRAMAX.

 

The Domain Names registered in 2023 point to competing commercial pay per click links to businesses not connected with the Complainant offering supplements for people and animals.

 

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 Domain Names in this Complaint combine the Complainant's NUTRAMAX LABORATORIES mark (registered in the USA for supplements for people and animals with first use recorded as 1991) the generic terms 'products', 'life', 'depot' and/or 'store' and/or the generic suffix 'imize' and the gTLD .com.

 

The addition or deletions of generic words or the addition of generic suffixes does not serve to distinguish the Domain Names from the Complainant's mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant's mark under Policy 4(a)(i).). See Sainato's Restaurant and Catering Limited v. chen xue ming, FA 1781748 (Forum June 4, 2018) (finding the <sainatos.com> domain name is confusingly similar to the SAINATO'S RESTAURANT mark as it "appends the gTLD ".com" to an abbreviated version of the mark.").

 

The gTLD .com does not serve to distinguish the Domain Names from the Complainant's NUTRAMAX LABORATORIES 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 Names are confusingly similar to the Complainant's NUTRAMAX LABORATORIES trade mark.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of the distinctive element of its mark NUTRAMAX. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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 use is commercial so cannot be legitimate non commercial fair use.

 

It is clear from the evidence that the Respondent has used the pages attached to the Domain Names to link to businesses competing with the Complainant through pay-per-click links. The usage of the Complainants' marks which have a significant reputation in relation to supplements for animals and people for the same products which are not connected with the Complainants is not fair as the pages attached to the Domain Names did not make it clear that there is no commercial connection with the Complainant. As such it cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1626253 (Forum July 29, 2015).

 

The Respondent has not answered the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Names and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Respondent is using the Domain Names to point to pay-per-click links to make profit from promoting products not associated with the Complainant in a disruptive and confusing manner. See Health Republic Insurance Company v above.com Legal, FA 1622068 (Forum July 10, 2015) ("The use of a domain name's resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant's business thereby showing bad faith in use and registration under Policy 4 (b)(iii)."). Additionally the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site and products offered on it under Policy 4 (b)(iv). See also Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1615034 (Forum June 4, 2015).

 

The Respondent has also registered several domain names containing the Complainant's mark suggesting a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the respondent's registration of multiple domain names in the instant proceeding was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).

 

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 <nutramaxproducts.com>, <nutramaxlife.com>, <nutramaxlifedepot.com>, <nutramaximize.com> and <nutramaximizestore.com>, domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: December 19, 2023