URS DEFAULT DETERMINATION

Zeltiq Aesthetics, Inc. v. WhoisGuard, Inc.
Claim Number: FA1611001703695

DOMAIN NAME

<coolsculpting.fit>

PARTIES

	Complainant: Zeltiq Aesthetics, Inc. of Pleasanton, CA, United States of America
	Complainant Representative: Thompson Hine LLP Carrie A. Shufflebarger of Cincinnati, OH, United States of America

	Respondent: WhoisGuard, Inc. WhoisGuard Protected of Panama, Panama, II, PA

REGISTRIES and REGISTRARS

	Registries: Top Level Domain Holdings Limited
	Registrars: Enom

EXAMINER

	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 Examiner in this proceeding.
	Douglas M. Isenberg, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: November 18, 2016
	Commencement: November 21, 2016
	Default Date: December 6, 2016
	Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

Findings of Fact: Complainant states the following: "Complainant Zeltiq is a medical technology company that owns and/or is the exclusive licensee of the technology underlying the process known as Cryolipolysis, a noninvasive, patented, clinically proven procedure which involves freezing fat cells without damage to the skin. Cryolipolysis treatments involve the selective reduction of fat bulges through the controlled cooling of subcutaneous fat tissue, which is broken down and absorbed by the body through a natural, biological process known as ‘apoptosis’ to gradually reshape body contours. The U.S. FDA has cleared Zeltiq’s device for the provision of treatments to various regions of the body. Zeltiq markets its Cryolipolysis device and system under its registered CoolSculpting mark (‘Mark’), which it distributes exclusively to authorized medical professionals who receive training on proper use of the device in compliance with FDA clearance. "Zeltiq’s CoolSculpting system has received substantial press coverage in the media since its clearance by the FDA for non-invasive, cosmetic body-contouring. The COOLSCULPTING Mark is promoted widely through advertising in various media, including through Complainant’s Coolsculpting.com web site and web sites owned and operated by Complainant’s authorized Physician Providers. Complainant’s CoolSculpting system also has received substantial press coverage in the national media. Representative samples of such coverage can be viewed at http://coolsculpting.com/in-the-news/. "Respondent has registered and is using CoolSculpting.fit to display a counterfeit website designed to resemble an authentic provider of CoolSculpting services. The site includes Zeltiq’s proprietary copyrighted content and unauthorized use of Zeltiq’s CoolSculpting mark and Snowflake Design logo, and encourages visitors to input personal information in order to ‘Enter to Win Free Coolsculpting.’ Complainant has not authorized Respondent to use or register Complainant’s Mark as part of a domain name, nor is Respondent an authorized provider of CoolSculpting services or the owner of an authentic CoolSculpting device. "Complainant believes that Respondent is using CoolSculpting.fit as part of a scam, designed to lure unsuspecting web users who are seeking information concerning Complainant and its CoolSculpting device and services to provide personally identifiable information. Registrant presumably derives revenue through improper use of data submitted by users on the site. Using Complainant’s mark as a domain name in this manner is not a bona fide offering of goods or services, nor is it a legitimate non-commercial or fair use of the domain name. Respondent’s use of the domain name in this manner takes unfair advantage of Complainant’s reputation. This intentional registration of a domain name incorporating Zeltiq’s wellknown trademark, and use in connection with a website designed to look like an authentic Zeltiq provider, is evidence of an intentional attempt to attract, for commercial gain, visitors to the registrant’s site by creating a likelihood of confusion as to source, sponsorship, or affiliation. Such use of Complainant's mark by Respondent, in both its domain name and in a counterfeit website to divert internet traffic from Complainant’s website to a site that is unaffiliated with Complainant, constitutes bad faith."

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The Examiner determines that the registered domain name is identical to a word mark for which the Complainant holds a valid national or regional registration and that is in current use.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

The Examiner determines that the Registrant has no legitimate right or interest to the domain name.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’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 Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

The Examiner determines that that the domain name was registered and is being used in bad faith because the domain name has been used in connection with a website that is likely to cause confusion with complainant's trademark because, as described by Complainant and as shown in a screenshot provided by Complainant, "Respondent has registered and is using CoolSculpting.fit to display a counterfeit website designed to resemble an authentic provider of CoolSculpting services. The site includes Zeltiq’s proprietary copyrighted content and unauthorized use of Zeltiq’s CoolSculpting mark and Snowflake Design logo, and encourages visitors to input personal information in order to ‘Enter to Win Free Coolsculpting.’"

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

coolsculpting.fit

Douglas M. Isenberg
Examiner
Dated: December 8, 2016

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