Nutramax Laboratories, Inc. v. Yeonju Hong / Dzone Inc.
Claim Number: FA1612001709155
Complainant is Nutramax Laboratories, Inc. (“Complainant”), represented by Brett G. Corbly of Nutramax Laboratories, Inc., Maryland, USA. Respondent is Yeonju Hong / Dzone Inc. (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dasuquin.org>, registered with Fabulous.com Pty Ltd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2016; the Forum received payment on December 22, 2016.
On December 22, 2016, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <dasuquin.org> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 December 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 2017 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@dasuquin.org. Also on December 28, 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 January 24, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant has rights in the DASUQUIN mark pursuant to its United States Patent and Trademark (“USPTO”) registration (Registry No. 3,266,390, registered July 17, 2007).
2. Respondent’s <dasuquin.org>[1] is identical to the mark because it takes the mark and merely adds the “.org” generic top-level domain (“gTLD”) to it.
3. Respondent has no rights or legitimate interests in the <dasuquin.org> domain name. Respondent is not commonly known by <dasuquin.org>.
4. Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use by the <dasuquin.org> domain name. Rather, the domain name is associated with a parked page hosting a variety of links.
5. Respondent registered and uses <dasuquin.org> in bad faith. Respondent’s hosting of a click-through website presumably nets it some commercial gain, evidencing bad faith under Policy ¶ 4(b)(iv).
6. Respondent has used the entirety of Complainant’s mark, demonstrating its actual knowledge of Complainant when registering and subsequently using the domain name under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the DASUQUIN mark. Respondent’s domain name is confusingly similar to Complainant’s DASUQUIN mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <dasuquin.org> domain name and that Respondent registered and uses the domain name 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(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 (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 has rights in the DASUQUIN mark pursuant to its USPTO registration (Registry No. 3,266,390, registered July 17, 2007). “There exists an overwhelming consensus . . . that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.” Humor Rainbow, Inc. v. James Lee, FA 1626154 (FORUM Aug. 11, 2015). Accordingly, the Panel agrees that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <dasuquin.org> domain name is identical to the mark because it takes the mark and merely adds the “.org” gTLD to it. Adding “.org” has not been considered a distinguishing feature. See Scott Elowitz Photography, LLC v. zhang yinfeng / Hengshui Fn Fur Trading Co., Ltd, FA 1534428 (FORUM Jan. 22, 2014) (holding, “The <lenscoat.org> domain name is identical to Complainant’s LENSCOAT under Policy ¶ 4(a)(i), because the domain name fully appropriates the mark and its affixation of the gTLD “.org” is insufficient to distinguish it from the mark.”). Accordingly, the Panel finds that <dasuquin.org> is identical to the DASUQUIN mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <dasuquin.org> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <dasuquin.org> domain name. Complainant contends that Respondent is not commonly known by <dasuquin.org>. WHOIS information has been found persuasive when respondents have not submitted any evidence for consideration. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (FORUM Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name.”). Here, the WHOIS information lists “Yeonju Hong / Dzone Inc.” as registrant of record of the domain name. Accordingly, the Panel agrees that Respondent is not commonly known by <dasuquin.org>.
Next, Complainant asserts that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use of <dasuquin.org>. Rather, the domain name is associated with a parked page hosting a variety of links (e.g, “ASU Bookstore,” “My ASU,” and “ASU University.”) Under similar circumstances, Panels have concluded that this does not establish rights or legitimate interests within the meaning of the Policy. See Materia, Inc. v. Michele Dinoia, FA1507001627209 (FORUM Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”). Therefore, the Panel agrees that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use of the domain name under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses <dasuquin.org> in bad faith. Complainant asserts that Respondent’s hosting of a click-through website presumably nets it some commercial gain, demonstrating bad faith under Policy ¶ 4(b)(iv). The Panel agrees. Including unrelated hyperlinks in a resolving website from a domain name that is identical to a mark in which a complainant has rights has resulted in findings of bad faith. See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (FORUM Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Complainant also points out that Respondent has used the entirety of Complainant’s mark, thus contending Respondent had actual knowledge of Complainant’s rights when registering and subsequently using the <dasuquin.org> domain name. The Panel agrees. See University of Rochester v. Park HyungJin, FA1410001587458 (FORUM Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”). Accordingly, the Panel agrees that Respondent had actual knowledge when registering and using the <dasuquin.org> domain which constitutes bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <dasuquin.org> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 31, 2017
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