3M Company v. OMAR MOTTA
Claim Number: FA1502001604129
Complainant is 3M Company (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is OMAR MOTTA (“Respondent”), Paraguay.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littmanndobrasil.com>, registered with ENOM, INC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 9, 2015; the Forum received payment on February 9, 2015.
On February 10, 2015, ENOM, INC. confirmed by email to the Forum that the <littmanndobrasil.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 February 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@littmanndobrasil.com. Also on February 10, 2015, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 owns the LITTMANN family of trademarks used in connection with stethoscopes and various other products and services in the medical industry. Complainant and its predecessor in interest have used the LITTMANN marks in commerce continuously since at least as early as 1942. Complainant owns trademark registrations for LITTMANN in the United States and Brazil. Complainant asserts that its LITTMANN marks have developed substantial goodwill and customer loyalty, and are recognized by consumers throughout the world.
Complainant contends that the disputed domain name <littmanndobrasil.com>, registered by Respondent in 2013, is confusingly similar to Complainant’s LITTMANN marks, adding only the generic term “dobrasil” and the generic top-level domain “.com”. Complainant contends further that Respondent has no rights or legitimate interests in the domain name, and that the domain name was registered and has been used in bad faith. In support thereof, Complainant states that it has not authorized or licensed Respondent to use its marks, and that there is no content on the website associated with the domain name. Complainant accuses Respondent of having engaged in a pattern of bad faith registrations. Complainant states that Respondent has registered other domain names incorporating Complainant’s mark, including <littmanndobrasil.com.br>, which Respondent is using to promote the sale of stethoscopes; and domain names incorporating other marks, citing WIPO decisions finding bad faith in Respondent’s registration of <legodobrasil.com.br>, <caterpillardobrasil.com.br>, <waterpikdobrasil.com.br>, <waterpik.ae>, and other domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.”).
The disputed domain name is comprised of Complainant’s registered LITTMANN mark, with the geographic term “do brasil” and the top-level domain “.com” appended thereto. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Bayer AG v. Maria Guadalupe Arellano Sanchez, D2014-1991 (WIPO Dec. 23, 2014) (finding <bayerdemexico.com> confusingly similar to BAYER); Alpargatas S.A v. Mizuno Brasil / PrivacyProtect.org, D2013-1457 (WIPO Oct. 3, 2013) (finding <mizunobrasil.net> confusingly similar to MIZUNO). The Panel therefore considers the disputed domain name to be confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and Respondent does not appear to have made any active use of the name. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(ii) of the Policy, bad faith may be shown by evidence that a domain name was registered “in order to prevent the owner of the trademark or service mark from reflecting the mark in
a corresponding domain name, provided that [Respondent] ha[s] engaged in
a pattern of such conduct.” Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
The unchallenged evidence demonstrates a pattern of bad faith domain name registrations by Respondent. The evidence also suggests that Respondent registered the domain name intending to profit by exploiting confusion with Complainant’s mark. The Panel therefore finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <littmanndobrasil.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 13, 2015
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