Drs. Foster & Smith, Inc. v. Amjad Kausar
Claim Number: FA0312000214908
Complainant is Drs. Foster & Smith, Inc. ("Complainant")
represented by Steven M. Anderson of Ruder, Ware & Michler,
L.L.S.C., 500 Third Street, Suite 700, P.O. Box 8050, Wausau, WI 54402‑8050.
Respondent is Amjad Kausar, 5612150, P.O. Box 5706, Karachi, Pakistan
74000 ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <drsfosterandsmith.com> registered with Enom,
Inc.
PANEL
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.
R.
Glen Ayers served as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on November 26, 2003; the Forum received a hard copy of the
Complaint on December 1, 2003.
On December 3, 2003, Enom, Inc. confirmed
by e‑mail to the Forum that the domain name <drsfosterandsmith.com>
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‑name
disputes brought by third parties in accordance with ICANN's Uniform Domain
Name Dispute Resolution Policy (the "Policy").
On
December 8, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of December 29, 2003 by which Respondent could file a Response to
the Complaint, was transmitted to Respondent via e‑mail, post and fax, to
all entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@drsfosterandsmith.com by
e‑mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
January 8, 2004, pursuant to Complainant's request to have the dispute decided
by a single‑member Panel, the Forum appointed R. Glen Ayers to act 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." 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A.
Complainant
Complainant
asserts that it is in the business of selling pet supplies and is the largest
pet supply cataloger with a strong, established brand name which is also
registered as a service mark with the U. S. Patent and Trademark Office. The
mark consists of a rendering showing a dog, a cat, and a horse followed by
"Doctors Foster & Smith" The Respondent's domain name is, of
course, <doctorsfosterandsmith.com>. These are alleged to be identical or
confusingly similar.
Allegedly,
Respondent sells the use of this domain name "as a redirect”, and the
domain name currently redirects users to a web page for PetCareRx, a
competitor.
Respondent,
whose name is not Foster, Smith or Dr. is alleged to have no rights or
interests in the names.
Sale
for redirection to a competitor's website is alleged to be bad faith and the
intentional use "to attract, for commercial gain, internet users to the
websites of ... competitors."
B.
Respondent
Respondent
did not submit a response.
C.
Additional Submissions
There
were no additional submissions.
FINDINGS
The
findings here are very simple. Of course, the mark and domain name are
identical or confusingly similar. A very large number of proceedings under the
ICANN Rules hold that the substitution of “and" for “&” (or the reverse) does not make the domain
name any less “identical” or any less “confusingly similar.”
Further,
Complainant has presented clear evidence that the Respondent has no legitimate
interest in the mark, the names used, or any one of the names used.
Here,
there is also compelling evidence of bad faith. Complainant has submitted copies of web pages and the resolution
of the domain name to a web site operated by a competitor.
Respondent
filed no Response, but the facts set out by the Complainant are clear.
DISCUSSION
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."
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.
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.
Identical
and/or Confusingly Similar
The
mark and domain name are confusingly similar. See e.g. Wright
& Lato, Inc. v. Epstein,
D2000-0621 (WIPO Sept. 2, 2000) (finding that the <wrightandlato.com>
domain name is identical to Complainant’s WRIGHT & LATO mark, because the
ampersand symbol (&) is not reproducible in a URL); Minn. State Lottery v. Mendes, FA 96701
(Nat. Arb. Forum Apr. 2, 2001) (finding that the <mnlottery.com> domain
name is confusingly similar to Complainant’s MINNESOTA STATE LOTTERY registered
mark).
Rights
or Legitimate Interests
Respondent
has no legitimate interest in the domain name or any component of the name.
See e.g., Winmark Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant
Sports Factory, FA 128652 (Nat. Arb. Forum Dec. 6, 2002) (finding that
Respondent had no rights or legitimate interests in a domain name that used
Complainant’s mark to redirect Internet users to a competitor’s website); Computerized
Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23,
2003) (holding that Respondent’s appropriation of Complainant’s mark to market
products that compete with Complainant’s goods does not constitute a bona fide
offering of goods and services).
Registration and Use in Bad Faith
Respondent,
by registering the domain name, and then "renting" the domain name
for use by a competitor, clearly acted in bad faith, attempting to attract
Internet users to a Competitor's web site for commercial gain. See e.g. Busy Body, Inc. v. Fitness Outlet, Inc.,
D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted
to attract customers to its website, <efitnesswholesale.com>, and created
confusion by offering similar products for sale as Complainant);
Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum
June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain
name to offer goods competing with Complainant’s illustrates Respondent’s bad
faith registration and use of the domain name, evidence of bad faith
registration and use pursuant to Policy 4(b)(iv)).
DECISION
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <drsfosterandsmith.com> domain name be TRANSFERRED
from Respondent to Complainant.
R. Glen Ayers, Panelist
Dated: January 22, 2004
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