NUTRI/SYSTEM IPHC, INC v. Martin Vaughn
Claim Number: FA1604001668503
Complainant is NUTRI/SYSTEM IPHC, INC (“Complainant”), represented by Lisa Lori of Klehr Harrison Harvey Branzburg LLP, Pennsylvania, United States. Respondent is Martin Vaughn (“Respondent”), Utah, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutrahealthsystems.com> ('the Domain Name'), 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.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 1, 2016; the Forum received payment on April 1, 2016.
On April 4, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <nutrahealthsystems.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 April 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 2016 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@nutrahealthsystems.com. Also on April 6, 2016, 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 April 28, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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
The Complainant's contentions can be summarised as follows:
Complainant is the owner of the trade mark NUTRISYSTEM in the USA registered in 1983 for weight loss products.
The Domain Name is nearly identical and confusingly similar to Complainant's mark. It contains the Complainant's mark with only the letter 's' attached as a suffix, one letter 'i' switched out for an 'a' and the word 'health' appended. The Domain Name is an example of typosquatting designed to take advantage of Internet users' typographical errors, which means it is confusingly similar by design.
Top level domains do not affect the Domain Name for the purpose of finding if it is identical or confusingly similar to a complainant’s mark under the Policy.
Respondent has no rights or legitimate interests in the Domain Name as it is not commonly known by it, it is not affiliated with the Complainant and has no consent to use the complainant’s marks, is not using it for a bona fide offering of goods and services or making legitimate non-commercial or fair use of it. The Domain Name was registered in 2014 significantly after Complainant's first use in commerce in 1979 and first registration of its mark in 1983.
Respondent said it would change its Domain Name if the Complainant would pay for the change which the Complainant declined to do.
The Domain Name was registered and is being used in bad faith. Typosquatting is, in itself, evidence of bad faith. Registering an infringing domain name with actual notice of the Complainant’s rights is bad faith. The use by the Respondent of the Domain Name to market and sell goods and services that directly compete with those of the Complainant is bad faith registration and use under section 4(b)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the trade mark NUTRISYSTEM in the USA registered in 1983 for weight loss products.
The Domain Name was registered in 2014 significantly after Complainant's first use in commerce in 1979 and first registration of its mark in 1983.
The Domain Name has been used to market and sell goods and services that compete with those of but are unconnected to the 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."
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 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“).
Identical or Confusingly Similar
The Domain Name is confusingly similar to the Complainant's NUTRISYSTEM registered trade mark because it incorporates a confusingly similar mark to that mark NUTRA SYSTEM with the generic word 'health' inserted in the middle plus a letter 's' added, 'health'' being related to the weight loss business in which the Complainant operates. See Nutri/System IPHC, Inc. v Domain Name Proxy service Inc., D2013-2127 (WIPO Jan. 2014)(finding the disputed domain name nutradietsystem.com confusingly similar to the Complainant's NUTRISYSTEM mark despite the minor spelling difference and the addition of a generic or descriptive word.)
The gTLD .com does not serve to distinguish the Domain Name from the Complainant's mark as it is usually ignored for the purposes of the Policy. See Reese v Morgan, FA 917029 (Nat Arb. Forum Apr 5, 2007) (finding that the mere addition of the gTLD .com is insufficient to differentiate a disputed domain name from a mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Respondent has not responded and given any reasons for its registration and use of the Domain Name. Respondent does not appear to be commonly known by the Domain Name. Complainant has not authorised the use of its mark and the Respondent does not appear to be connected with the Complainant in any way.
The Domain Name has been used to point to a website offering third party commercial products not connected to the Complainant. The Panel notes Alcon Inc. v ARanked, FA 1306493 (Nat. Arb. Forum Mar, 18, 2010)(the panel finds that capitalising on the well-known marks of the Complainant by attracting Internet users to its disputed domain name where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy 4 (c)(i) or a non-commercial or fair use pursuant to Policy 4 (C)(iii)).
The Panel thus concludes that there is no rights or legitimate interests in the Domain Name under para 4(c)(i) or (iii) of the Policy.
Respondent has not responded. He has not explained why he has registered a Domain Name including a misspelling of the Complainant’s mark and/or the generic term 'health' related to the Respondent’s business.
The available evidence suggests that the Respondent is using this domain name in an attempt to purposely attract Internet users seeking Complainant's goods to a web site offering competing products to the Complainant for commercial purposes to advertise products not of the Complainant’s manufacture, at least reckless as to any disruption of the Complainant's business. The Panel notes Jerie v Burian, FA 795430 (Nat Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant's business under the LIVESCORE mark because the respondent was maintaining a web site in direct competition with the 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 <nutrahealthsystems.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 12, 2016
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