Klein-Becker IP Holdings, LLC v. Venn Life Inc. c/o System Manager
Claim Number: FA0610000829162
Complainant is Klein-Becker IP Holdings, LLC (“Complainant”), represented by Catherine A. Van Horn, of Nagin Gallop Figueredo, P.A., 18001 Old Cutler Road, Suite 556, Miami, FL 33157-6416. Respondent is Venn Life Inc. c/o System Manager (“Respondent”), 1526 Sanchez, San Francisco, CA 94131.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <strivectim.com>, registered with Schlund+Partner Ag.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 30, 2006; the National Arbitration Forum received a hard copy of the Complaint on November 3, 2006.
On October 31, 2006, Schlund+Partner Ag confirmed by e-mail to the National Arbitration Forum that the <strivectim.com> domain name is registered with Schlund+Partner Ag and that Respondent is the current registrant of the name. Schlund+Partner Ag has verified that Respondent is bound by the Schlund+Partner Ag registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 9, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 29, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@strivectim.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 5, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <strivectim.com> domain name is confusingly similar to Complainant’s STRIVECTIN-SD mark.
2. Respondent does not have any rights or legitimate interests in the <strivectim.com> domain name.
3. Respondent registered and used the <strivectim.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Klein-Becker IP Holdings, LLC, and its
subsidaries and licensees manufacture, distribute and sell various
cosmeceutical products. Complainant has
used the STRIVECTIN-SD mark since at least 2002 in connection with a line of
cosmetics sold in numerous retail stores and online. Complainant holds a trademark registration with the United States
Patent and Trademark Office (“USPTO”) for the STRIVECTIN-SD mark (Reg. No.
2,760,414 issued September 2, 2003).
Respondent registered the <strivectim.com> domain name on March 6, 2006. Respondent’s disputed domain name resolves to a website that displays hyperlinks to Complainant’s website, as well as various third-party websites, some of which are in direct competition with Complainant.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant’s registration of the STRIVECTIN-SD mark with
the USPTO sufficiently establishes Complainant’s rights in the mark. See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.”); see also Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the
NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).
The Panel finds that Respondent’s <strivectim.com> domain name is confusingly similar to Complainant’s STRIVECTIN-SD mark pursuant to Policy ¶ 4(a)(i). The deletion of the hyphen and letters “s” and “d” from the end of the mark, as well as changing the “n” in the mark to “m” is not enough to negate the confusing similarity between the disputed domain name and Complainant’s mark as the dominant portion of Complainant’s mark remains in the disputed domain name. See Nat’l Cable Satellite Corp. v. Black Sun Surf Co., FA 94738 (Nat. Arb. Forum June 19, 2000) (holding that the domain name <cspan.net>, which omitted the hyphen from the trademark spelling, C-SPAN, is confusingly similar to the complainant's mark); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant initially must establish that Respondent lacks rights and legitimate interests with respect to the <strivectim.com> domain name. However, once Complainant demonstrates a prima facie case, the burden of proof shifts, and Respondent must prove that it has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Complainant asserts that Respondent is not authorized to use
Complainant’s STRIVECTIN-SD mark, and that Respondent is not associated with
Complainant in any way. Additionally,
Respondent’s WHOIS information does not indicate that Respondent is commonly
known by the disputed domain name, and there is no other evidence in the record
to suggest Respondent is commonly known by the <strivectim.com>
domain name. The Panel accordingly
finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See RMO,
Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting
Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known
by the domain name prior to registration of the domain name to prevail"); see
also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is commonly
known by a domain name, the assertion must be rejected).
Respondent is using the disputed domain name to operate a website that displays hyperlinks to Complainant’s website, as well as to various third-party websites, some of which are in direct competition with Complainant. In Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003), the panel found that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names. See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Accordingly, the Panel finds that Respondent is not using the <strivectim.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Complainant has alleged that Respondent acted in bad faith
by registering and using the <strivectim.com> domain name. Respondent is using the disputed domain name
to redirect Internet users to a website that contains a series of hyperlinks to
various websites, some of which are in direct competition with
Complainant. The Panel finds that such
use constitutes a disruption of Complainant’s business and is evidence of bad
faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding the respondent acted in bad faith by attracting
Internet users to a website that competes with the complainant’s business); see
also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
Based on the uncontested
evidence presented by Complainant, the Panel infers that Respondent receives
click-through fees for the hyperlinks displayed on the website that resolves
from the disputed domain name. Such
commercial benefit constitutes bad faith registration and use under Policy ¶
4(b)(iv). The Panel additionally finds
that Respondent’s disputed domain name is likely to cause confusion as to
Complainant’s sponsorship of and affiliation with the <strivectim.com>
domain name, which is further evidence of bad faith registration and use. See Kmart v. Khan, FA 127708 (Nat.
Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its
diversionary use of the complainant's mark when the domain name resolves to
commercial websites and the respondent fails to contest the complaint, it may
be concluded that the respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)); see also Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where the respondent directed Internet users seeking the
complainant’s site to its own website for commercial gain).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <strivectim.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 15, 2006
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