Nature Path, Inc. v. Structural Integrity Corp.
Claim Number: FA1012001364285
Complainant is Nature Path, Inc. (“Complainant”), represented by David E. Alexander of Racine, Olson, Nye, Budge & Bailey, Chtd., Ammon, Idaho, USA. Respondent is Structural Integrity Corp (“Respondent”), Panama City, Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thetahealingtechnique.com>, registered with GoDaddy.com, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Linda M. Byrne as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2010; the National Arbitration Forum received payment on January 4, 2011.
On December 21, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <thetahealingtechnique.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.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 January 12, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 2011, 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@thetahealingtechnique.com. Also on January 12, 2011, the Written Notice of the Complaint, notifying Respondent of the email 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.
A timely Response was received and determined to be complete on January 20, 2011.
Complainant filed a timely Additional Submission on January 24, 2011.
On January 26, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Linda M. Byrne as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant argues that Respondent’s <thetahealingtechnique.com> domain name is confusingly similar to Complainant’s THETA HEALING mark. The Complainant argues that the addition of the generic term “technique” and the generic top-level domain “.com” to THETA HEALING does not avoid likelihood of confusion between the THETA HEALING trademark and the <thetahealingtechnique.com> domain name.
Complainant contends that Respondent’s <thetahealingtechnique.com> domain name resolves to a commercial website that criticizes Complainant and advertises a competing healing methodology. Complainant alleges that this use disrupts Complainant’s business.
The Complainant argues that Respondent has registered and used the <thetahealingtechnique.com> domain name in bad faith by using Complainant’s mark without authorization to attract Complainant’s customers, to criticize Complainant, and to profit from customers’ exposure to information about competitors.
Complainant contends that Respondent assigned the <thetahealingtechnique.com> domain name to Respondent, a Panamanian company, so that the company would be outside the jurisdiction of U.S. courts.
B. Respondent
Respondent makes no contention with regards to Policy ¶ 4(a)(i).
Respondent argues that its use of <thetahealingtechnique.com> is an “educational, free speech site that warns people of the dangerous cult operated by the [owners of Complainant].” Respondent admits that the <thetahealingtechnique.com> domain name previously resolved to a website that sold services. Respondent claims that this commercial use of the disputed domain name ceased after Trisha Howell, a third party, transferred the disputed domain name to Respondent. Respondent argues that it does not currently sell or promote any goods or services at <thetahealingtechnique.com>.
C. Additional Submissions
Complainant’s Additional Submission argues that Respondent is using the website for commercial purposes, referring to several pages from the <thetahealingtechnique.com> site.
Complainant alleges it previously filed an action involving the <thetahealingtechnique.com> domain name against Trisha Howell, a third party, in the United States District Court for the District of Idaho. The Complaint was filed on July 8, 2009. However, Complainant subsequently dismissed this action prior to the rendering of a decision, and the litigation is no longer pending. Therefore, this Panel concludes that it has no impact on this UDRP proceeding.
There was a prior UDRP decision that involved the <thetahealingtechnique.com> domain name: Nature Path, Inc. v. Structural Integrity Corp., FA 1279866 (Nat. Arb. Forum Oct. 6, 2009). In that case, the panel denied Complainant’s request to have the disputed domain name transferred from Respondent to Complainant. The Panel held that Complainant failed to establish common law trademark rights in the THETA HEALING mark under Policy ¶ 4(a)(i).
Prior panels have found that four circumstances permit a rehearing of a previously filed complaint that reached a substantive decision: “(1) serious misconduct on the part of a judge, juror, witness or lawyer; (2) perjured evidence having been offered to the court; (3) the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial; or (4) a breach of natural justice.” Grove Broad. Co. Ltd. v. Telesystems Commc’ns Ltd., D2000-0703 (WIPO Nov. 10, 2000) (noting, and subsequently applying to the UDRP, the four common-law grounds for the rehearing or reconsideration of a previously filed decision); see also Koninklijke Philips Elecs. N.V. v. Relson Ltd., DWS2002-0001 (WIPO June 14, 2002) (determining that it “should follow the consensus view that has emerged” with regard to refiled complaints and holding such refiling impermissible unless the subsequent proceeding would be appropriate under the Grove Broadcasting standards).
This Panel concludes that res judicata does not pertain to this case because a Grove Broadcasting circumstance applies. Specifically, Complainant argues that it registered the THETA HEALING mark with the United States Patent and Trademark Office (“USPTO”) after the date of the prior UDRP decision (e.g., Reg. No. 3,798,383 issued June 8, 2010). Therefore, the Panel concludes that Complainant’s trademark registration constitutes “the discovery of credible and material evidence which could not have been reasonably foreseen or known at trial.” Accordingly, the Panel finds that factor three of the Grove Broadcasting standard applies to the present action and chooses to proceed with this UDRP proceeding, will consider the merits of the case de novo. See Creo Prods. Inc. v. Website in Dev., D2000-1490 (WIPO Jan. 19, 2001) (“In relation to a Refiled Complaint that is truly a new action under the Uniform Policy, the administrative panel is undertaking a consideration of the merits of the case de novo. It follows that, unless agreed otherwise by the parties, the administrative panel considering the Refiled Complaint cannot rely on the findings of fact, or on the conclusions on the application of the Uniform Policy to the found facts, reached by the administrative panel on the previous complaint.”).
In addition, this Panel finds:
1) Complainant is the owner of at least one registration for THETA HEALING (U.S. Reg. No. 3,798,383, issued June 8, 2010).
2) Respondent’s <thetahealingtechnique.com> domain name resolves to a website designed to direct people to information about “Lifonics”, which is another healing and “life-coaching” method.
3) Respondent is not commonly known by the <thetahealingtechnique.com> domain name. The WHOIS information for the disputed domain name lists the registrant as “Structural Integrity Corp.”
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.
Complainant, Nature Path, Inc., states that it uses the THETA HEALING mark in connection with books in the field of psychic healing, as well as psychic healing and in-person energy healing services. Complainant claims rights in the THETA HEALING mark through its registration of the mark with the USPTO (e.g., Reg. No. 3,798,383, issued June 8, 2010). The Panel concludes that this trademark registration sufficiently proves Complainant’s rights in the THETA HEALING mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant contends the <thetahealingtechnique.com> domain name is confusingly similar to its THETA HEALING mark, and Respondent makes no argument against this contention. The Panel concludes that adding the generic term “technique” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark does not sufficiently distinguish Respondent’s domain name from the THETAHEALING mark. See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel determines that the <thetahealingtechnique.com> domain name is confusingly similar to Complainant’s THETA HEALING mark under Policy ¶ 4(a)(i).
The WHOIS information lists “Structural Integrity Corp.” as the registrant of the disputed domain name, which is not similar to the <thetahealingtechnique.com> domain name. It therefore appears that Respondent is not commonly known by the <thetahealingtechnique.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent claims that it has rights and legitimate interests to criticize the Complainant on its <thetahealingtechnique.com> website. However, the site does more than provide legitimate commentary. The site promotes competitive sites associated with Respondent, and associates its criticism with a domain name that is confusingly similar to Complainant’s trademark. See Weekley Homes, L.P. v. Fix My House Or Else?, FA 96609 (Nat. Arb. Forum Apr. 18, 2001) (finding that establishment of a website containing criticism is not a legitimate use of the <davidweekleyhome.com> domain name because the disputed domain name is confusingly similar to the complainant's DAVID WEEKLEY HOMES mark); see also Monty & Pat Roberts, Inc. v. Keith, D2000-0299 (WIPO June 9, 2000) (“[T]he Panel does not dispute Respondent’s right to establish and maintain a website critical of Complainant . . . However, the panel does not consider that this gives Respondent the right to identify itself as Complainant.”).
The disputed domain name resolves to a website that provides hyperlinks to Complainant’s competitors. The site contains information about Trisha Howell, a third party, and Complainant’s former licensee. Ms. Howell’s healing and teaching services, which compete with Complainant’s services, are promoted on or linked to the <thetahealingtechnique.com> site. The site contains hyperlinks to a company called Lifonics! (operated by Ms. Howell), as well as links that connect to <Dr.DeanHowell.com>, a website that provides healing services that compete with Complainant’s business.
Therefore, the Panel concludes that Respondent uses the disputed domain name to resolve to a website promoting Complainant’s competitor and providing hyperlinks to third-party competing websites. As such, the Panel concludes that Respondent does not use the disputed domain name to make 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). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
Therefore, the Panel concludes that Respondent’s use does not establish rights or legitimate interests in Respondent under Policy ¶ 4(a)(ii).
As discussed above, the Panel determines that Respondent uses a domain name that is confusingly similar to Complainant’s mark to resolve to a website that provides criticism of Complainant’s business. This behavior amounts to registration and use in bad faith under Policy ¶ 4(a)(iii). See Robo Enters., Inc. v. Tobiason, FA 95857 (Nat. Arb. Forum Dec. 24, 2000) (“Respondent choose the domain name to cause persons seeking information on ROBO ENTERPRISES to be drawn to Respondent’s website for the purpose of exposing the user to negative and critical views of Complainant. Choosing and operating the domain name for such a purpose in this case is bad faith.”); see also Diners Club Int’l, Ltd. v. Infotechnics Ltd., FA 169085 (Nat. Arb. Forum Aug. 20, 2003) (“Respondent’s registration and use of a domain name nearly identical to Complainant’s mark to criticize Complainant’s business practices is evidence of registration and use of the <diners-club.net> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).
In addition, the Panel concludes that Respondent uses the <thetahealingtechnique.com> domain name to redirect Internet users seeking its education and healing services to a website that provides information about and links to Complainant’s competitors. As such, Respondent’s site disrupts Complainant’s business.
In view of the above, the Panel holds that Respondent has engaged in registration and use in bad faith under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thetahealingtechnique.com> domain name be TRANSFERRED from Respondent to Complainant.
Linda M. Byrne, Panelist
Dated: February 10, 2011
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