Nutramax Laboratories, Inc. v. Milen Radumilo
Claim Number: FA2207002004078
Complainant is Nutramax Laboratories, Inc. (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutramaxlab.com>, registered with Your Domain LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 13, 2022; the Forum received payment on July 13, 2022.
On July 15, 2022, Your Domain LLC confirmed by e-mail to the Forum that the <nutramaxlab.com> domain name is registered with Your Domain LLC and that Respondent is the current registrant of the name. Your Domain LLC has verified that Respondent is bound by the Your Domain LLC 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 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 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@nutramaxlab.com. Also on July 21, 2022, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On August 13, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
A. Complainant
Complainant is a South Carolina-based global nutritional research company. Complainant claims rights in the NUTRAMAX LABORATORIES mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,231,260 registered March 16, 1999).. The disputed domain name <nutramaxlab.com> is confusingly similar because it incorporates a dominant portion of Complainant’s registered mark, differing only through a shortened version of the term “laboratories” (“lab”) and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <nutramaxlab.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the NUTRAMAX LABORATORIES mark in any way. Additionally, Respondent fails to use the disputed domain name in connection with make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to pass off as Complainant. Furthermore, Respondent uses the disputed domain to host third party pay-per-click advertisements.
Respondent registered and uses the disputed domain in bad faith. Respondent uses the disputed domain to pass itself off as Complainant and host third-party pay-per-click advertisements. Furthermore, Respondent used a privacy service while registering the disputed domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <nutramaxlab.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 argues that Respondent’s <nutramaxlab.com> domain name is confusingly similar to Complainant’s NUTRAMAX LABORATORIES mark because it incorporates a dominant portion of Complainant’s mark and differs only in that the term “laboratories” has been shortened to “lab” and the “.com” gTLD is added. Adoption of a dominant portion of a legitimate mark into a domain name has been held to greatly bolster claims of confusing similarity. See Supercell Oy v. WhoisProxy.com Ltd / Jordan Rash, Application Automation LLC, D2015-1445 (WIPO Oct 9, 2015) (determining that Respondent’s incorporation of the word “clash” into a domain conferred standing because “clash was identical to Complainant’s CLASH OF CLANS mark). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <nutramaxlab.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the NUTRAMAX LABORATORIES mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the 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 Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information associated with the disputed domain does not indicate that Respondent is known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name and was not granted usage rights per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent does not use the <nutramaxlab.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant. Using a disputed domain name to pass off as a Complainant is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant has provided the Panel with screenshots of the disputed domain displaying pay-per-click links to Complainant’s competitors. The Panel finds that Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant contends that Respondent’s use of <nutramaxlab.com> also does not qualify as a bona fide offering or legitimate noncommercial or fair use because Respondent uses the disputed domain to host pay-per-click hyperlinks. Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial and they do not qualify as a bona fide offering. See 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 the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Complainant here provides a screenshot of the resolving webpage displaying links to Complainant’s competitors. The Panel finds that Complainant has sufficiently established Respondent’s lack of legitimate interest in the <nutramaxlab.com> domain name for purposes of Policy ¶ 4(a)(ii) and the Panel finds Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <nutramaxlab.com> domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Where the respondent uses a disputed domain name to pass themselves off as a complainant, the Panel may find 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 Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”), Complainant provides screenshots disputed domain displaying links to competitors. This is evidence that Respondent registered and used the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant argues that Respondent did not provide any contact information. Instead, Respondent seemingly used a privacy service to register the domain. Past Panels have noted that although engaging a privacy service alone is not sufficient, it may demonstrate bad faith based on the overall context of the case under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”); see also Microsoft Corporation v. Arif Khan, FA2008001907105 (Forum Aug. 31, 2020) (“in the context of this case Respondent’s use of a WHOIS privacy service further supports a finding of bad faith under Policy ¶ 4(a)(iii).”). The publicly available WHOIS information demonstrates that Respondent utilized a privacy service when registering the disputed domain. The Panel finds that Respondent’s use of a privacy service is evidence of bad faith registration under Policy ¶ 4(a)(iii) and the Panel finds Respondent registered and uses the domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <nutramaxlab.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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