Nutri/System IPHC, Inc. v. Alex Ovechkin / Antonio Marques / Crystal Image Pty Ltd / AUGUSTINE RIVERA / Web Pescados LLC / Balram Brahmin / Brett Alichec / Alichec Inc. / David Ghou / Denesh Kumar / Denholm Borg / Domain Administrator / Volchar Pty Ltd / Julian Greenberg / Liquid SEO Limited / Lidnick Webcorp / Lidnick Webcorp Inc / Luchichang Luchichang / Luchichang Pty Ltd / Luis de Carvalho / Belroots Pty Ltd / Michael Chung Wu / WuWeb Pty Ltd / Na Xi / Loshedina Inc / Oleg Techino / Orel Hlasek / Orel Hlasek LLC / Vivian Cox / ZincFusion Limited / Vlad Obchikov
Claim Number: FA1405001560955
Complainant is Nutri/System IPHC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Alex Ovechkin, et al. (“Respondent”), Belgium.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 22, 2014; the National Arbitration Forum received payment on May 22, 2014.
On May 23, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 28, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 17, 2014 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@hutrisystem.com, postmaster@nnutrisystem.com, postmaster@nurrisystem.com, postmaster@nuteisystem.com, postmaster@nutricystem.com, postmaster@nutridystem.com, postmaster@nutriisystem.com, postmaster@nutrisstem.com, postmaster@nutrissystem.com, postmaster@nutrissytem.com, postmaster@nutriststem.com, postmaster@nutrisustem.com, postmaster@nutrisyetem.com, postmaster@nutrisysstem.com, postmaster@nutrisystam.com, postmaster@nutrisysteem.com, postmaster@nutrisystemm.com, postmaster@nutrisystim.com, postmaster@nutrisysttem.com, postmaster@nutrisyystem.com, postmaster@nutriystem.com, postmaster@nuttisystem.com, postmaster@nuttrisystem.com, postmaster@nuutrisystem.com, and postmaster@nyutrisystem.com. Also on May 28, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 25, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" 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 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 names be transferred from Respondent to Complainant.
1. Complainant is a well-known and highly respected provider of diet and weight loss products and services. Complainant has used the NUTRISYSTEM mark since 1983. Complainant offers balanced nutrition in the form of low glycemic index meal plans designed for men and women.
2. Complainant has rights in the NUTRISYSTEM mark through its registrations with recognized trademark authorities under Policy ¶ 4(a)(i).
a. United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,297,847 registered September 25, 1984); (e.g., Reg. No. 1,776,989 registered June 15, 1993).
b. World Intellectual Property Organization (“WIPO”) (e.g, Reg. No. 929,445 registered January 8, 2007)
c. European Union’s Office for Harmonization in the Internal Market (“OHIM”) (Reg. No. 1,898,410 registered March 25, 2002)
d. Canadian Intellectual Property Office (“CIPO”) (e.g., Reg. No. TMA 308,665 registered November 29, 1985)
3. Respondent’s disputed domain names are confusingly similar to Complainant’s NUTRISYSTEM mark.
a. Respondent’s, <nnutrisystem.com>, <nutriisystem.com>, <nutrissystem.com>, <nutrisysstem.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> disputed domain names add an additional letter to Complainant’s NUTRISYSTEM mark.
b. Respondent’s <hutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutrisstem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisystam.com>, <nutrisystim.com>, and <nuttisystem.com> domain names all replace one letter in Complainant’s mark with an incorrect letter.
c. Respondent’s <nutrissytem.com> and <nutriystem.com> domain names switch two letters around to make the domain name a misspelling of Complainant’s NUTRISYSTEM mark.
4. Respondent has no rights or legitimate interests in the disputed domain names.
a. Respondent is not commonly known by the disputed domain names. Respondent has no trademark or intellectual property rights in the disputed domain names. Additionally the WHOIS record for the disputed domain names suggests that Respondent is known as an entity other than the trademark associated with Complainant. Complainant has also not licensed, authorized, or permitted Respondent to register the domain names incorporating Complainant’s mark.
b. Respondent uses the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees form the links displayed on the websites. See Complainant’s Exhibit H.
c. Respondent’s use of the disputed domain names indicates typosquatting behavior.
5. Respondent registered and is using the disputed domain names in bad faith.
a. Respondent has engaged in an ongoing pattern of registering infringing domain names. See Complainant’s Exhibit N-O.
b. Respondent’s disputed domain names resolve to websites displaying pay-per-click links, from which Respondent collects revenue. Respondent’s resolving website also promotes products that compete with Complainant, thus disrupting Complainant’s operations.
c. Respondent uses the disputed domain names to attract Internet users and mislead and confuse them as to Complainant’s association with the disputed domain name, and thus commercially profit. Respondent further displays content and keywords referring to Complainant, spelled correctly.
d. Respondent uses typosquatted versions of Complainant’s mark in the disputed domain names.
1. The Panel notes that Respondent’s disputed domain names were all registered on July 11, 2004.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that all of the 19 Respondents in this case share the same name as respondent’s in NAF Claim No. FA1337660, which held that they are the same Respondent. See Complainant’s Exhibit N. Complainant points out that all of the disputed domain names were registered with GoDaddy.com, Inc. on the same day, July 11, 2004, and expire on the same date, July 11, 2014. Complainant asserts that all of the disputed domain names are mistyped variations of the same Complainant mark. Complainant further claims that Respondent uses the same parking engine for the disputed domain names as provided by DSPARKING.COM service provided by Oversee.net, located at <http://www.dsparking.com>. Complainant asserts that the forwarding function can be observed through the use of an Http viewer, like the one found at www.rexswain.com . See Complainant’s Exhibit P. Complainant thus concludes that the commonalities documented between the disputed domain names, as well as the shared similarities such as IP addresses, redirecting process, and mistype-variations, indicate that the control of the disputed domain names and subsequent profits resulting from this activity are received by a single entity, the Respondent. The Panel agrees, and holds that all constitute the same Respondent.
1. Respondent’s <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> domain names are confusingly similar to Complainant’s NUTRISYSTEM mark.
2. Respondent does not have any rights or legitimate interests in the <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> domain names.
3. Respondent registered or used the <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> domain names in bad faith.
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(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.”).
Complainant states that it is a well-known and highly respected provider of diet and weight loss products and services for which Complainant has used the NUTRISYSTEM mark in association with since 1983. Complainant explains that its company offers balanced nutrition in the form of low glycemic index meal plans designed for men and women. Complainant provides the Panel with evidence that Complainant is the owner of the USPTO, WIPO, OHIM, and CIPO registrations for the NUTRISYSTEM mark. See Complainant’s Exhibit E-F; see USPTO (e.g., Reg. No. 1,297,847 registered September 25, 1984); WIPO (e.g, Reg. No. 929,445 registered January 8, 2007); OHIM (Reg. No. 1,898,410 registered March 25, 2002); and CIPO (e.g., Reg. No. TMA 308,665 registered November 29, 1985). Panels have found that registration of a mark with the USPTO, OHIM, or CIPO sufficiently demonstrates that the owner of the registration has rights in the mark. See Dixie Consumer Prods. LLC v. Private Whois dixiecup.com, FA 1419529 (Nat. Arb. Forum Jan. 27, 2012) (finding that complainant’s trademark registrations with a number of trademark authorities around the world, including with the CIPO and USPTO, “successfully proves a complainant has rights in a mark . . .”); see also Orange Glo Int’l, Inc. v. Roswell Int’l Ltd, FA 440119 (Nat. Arb. Forum Apr. 21, 2005) (finding the complainant had established rights in the OXICLEAN mark by virtue of trademark registrations with various authorities, including the Office for Harmonization in the Internal Market (“OHIM”)). Panels have expanded the sufficiency of such rights by holding that trademark registration satisfies Policy ¶ 4(a)(i) regardless of whether the respondent lives or operates within the jurisdiction where the mark is registered. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Given the findings of prior panels and Complainant’s demonstration of trademark registration, the Panel finds that Complainant has rights in the NUTRISYSTEM mark pursuant to Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s disputed domain names are confusingly similar to Complainant’s NUTRISYSTEM mark. The Panel notes that Respondent’s all of Respondent’s disputed domain names add the generic top-level domain (“gTLD”) “.com.” The panel in Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000), determined that, as a required element of all domain names, the addition of a generic top-level domain (“gTLD”) is irrelevant to a Policy ¶ 4(a)(i) analysis.
Further, Complainant states that Respondent’s <nnutrisystem.com>, <nutriisystem.com>, <nutrissystem.com>, <nutrisysstem.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> disputed domain names add an additional letter to Complainant’s NUTRISYSTEM mark. In Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002), the panel held that the addition of extra letters to a mark does not distinguish the mark from the domain name it is incorporated within.
Complainant also claims that Respondent’s <hutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutrisstem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisystam.com>, <nutrisystim.com>, and <nuttisystem.com> domain names all replace one letter in Complainant’s mark with an incorrect letter. In Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) the panel found that the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar.
Complainant next claims that Respondent’s <nutrissytem.com> and <nutriystem.com> domain names switch two letters around to make the domain name a misspelling of Complainant’s NUTRISYSTEM mark. InWyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) the panel found the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark. The Panel therefore concludes that based on the above mentioned prior panel holdings, the Panel, here, finds that all of Respondent’s 25 disputed domain names are confusingly similar to Complainant’s NUTRISYSTEM mark.
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain names. In so arguing, Complainant contends that Respondent is not commonly known by the disputed domain names. Complainant points out that Respondent has no trademark or intellectual property rights in the disputed domain names. Additionally, Complainant contends that the WHOIS record for the disputed domain names suggests that Respondent is known as an entity other than the trademark associated with Complainant. Complainant states that it has also not licensed, authorized, or permitted Respondent to register the domain names incorporating Complainant’s mark. Respondent failed to submit a Response in the proceeding, and therefore, has not refuted Complainant’s contentions. As such, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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).
Complainant additionally asserts that Respondent uses the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Complainant alleges that Respondent presumably receives pay-per-click fees form the links displayed on the websites. See Complainant’s Exhibit H. The Panel notes that Respondent’s disputed domain names resolve to websites featuring links including but not limited to, “Nutrisystem- Special Offers,” “Atkins Free Starter Kit,” “Want Rapid Weight Loss,” “Jillian Michaels Online,” “1 Tip to Lose Belly Fat,” “5 Foods you must not eat,” and “Diabetic Meal Plan.” Previous panels have found that resolving websites that promote links to the complainant and its competitors does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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 Respondent is not using the disputed domain names to provide 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) by causing the disputed domain name to resolve to a webpage promoting Complainant’s own website, as well as websites belonging to competitors.
Complainant additionally claims that Respondent’s use of the disputed domain names indicates typosquatting behavior. In LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) the Panel found that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names.” The Panel thus concludes that Respondent’s typosquatting behavior does not establish rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii).
Complainant argues that Respondent has engaged in an ongoing pattern of registering infringing domain names, thus indicating bad faith use and registration. See Complainant’s Exhibit N-O. The Panel notes that some of the prior UDRP decisions held against Respondent include; REDCATS USA, L.P. v. Alex Ovechkin, et. al., FA 1337660 (Nat. Arb. Forum September 23, 2010); see also U.S. Auto Parts Network, Inc. v. Alex Ovechkin, et. al., FA 1487371 (Nat. Arb. Forum April 17, 2013). Complainant also urges the Panel to note its Exhibit O listing information for other typosquatted domain names held by Respondent. Panels have frequently found that a respondent acts in bad faith under Policy ¶ 4(b)(ii) when it is involved in prior UDRP decisions transferring domain names from respondent to a complainant. See Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting). The Panel concludes that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(ii).
Complainant next asserts that Respondent’s disputed domain names resolve to websites displaying pay-per-click links, from which Respondent collects revenue. Complainant also highlights that Respondent’s resolving website promotes products that compete with Complainant, thus disrupting Complainant’s operations. The Panel again notes that Complainant’s Exhibit H includes a screen shot of the reachable pages which offers links to Complainant’s products as well as meal plans and diet supplements that compete with Complainant. Previous panels have found evidence of bad faith where a respondent provides links to competitors of the complainant through the confusingly similar domain name. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). The Panel finds evidence of bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(iii) because Complainant has provided the Panel with evidence showing Respondent provides links to Complainant’s competitors.
Complainant argues that Respondent uses the disputed domain names to attract Internet users to its resolving websites and mislead and confuse them as to Complainant’s association with the disputed domain name, thus resulting in commercial profit. See Complainant’s Exhibit H. Complainant contends that Respondent further displays content and keywords referring to Complainant, spelled correctly. In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel wrote, “Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).” The present case is comparable, and the Panel thus finds evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv) because the domain names resolving pages provide links to Complainant’s competitors, and Respondent likely generates click-through fees from the linked websites.
Complainant also claims that Respondent uses typosquatted versions of Complainant’s mark in the disputed domain names. The Panel notes that previous panels have traditionally found typosquatting where there is a disputed domain name representing a typographical error with respect to a complainant’s mark or correlation between an incorrect letter found in the disputed domain name and its placement on a computer keyboard near the correct letter as found in the complainant’s mark. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel concludes that Respondent’s registration and use of the disputed domain names indicates bad faith typosquatting under Policy ¶ 4(a)(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 <hutrisystem.com>, <nnutrisystem.com>, <nurrisystem.com>, <nuteisystem.com>, <nutricystem.com>, <nutridystem.com>, <nutriisystem.com>, <nutrisstem.com>, <nutrissystem.com>, <nutrissytem.com>, <nutriststem.com>, <nutrisustem.com>, <nutrisyetem.com>, <nutrisysstem.com>, <nutrisystam.com>, <nutrisysteem.com>, <nutrisystemm.com>, <nutrisystim.com>, <nutrisysttem.com>, <nutrisyystem.com>, <nutriystem.com>, <nuttisystem.com>, <nuttrisystem.com>, <nuutrisystem.com>, and <nyutrisystem.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: July 8, 2014
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