Alticor Inc. v. Konstantin Becker a/k/a Sei-Sexy
Claim Number: FA0906001265965
Complainant is Alticor
Inc. (“Complainant”), represented by Jeffrey
A. Nelson, of Warner Norcross & Judd LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amway-products.com>, registered with Psi-Usa, Inc. d/b/a Domain Robot.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 2, 2009.
On June 2, 2009, Psi-Usa, Inc. d/b/a Domain Robot confirmed by e-mail to the National Arbitration Forum that the <amway-products.com> domain name is registered with Psi-Usa, Inc. d/b/a Domain Robot and that Respondent is the current registrant of the name. Psi-Usa, Inc. d/b/a Domain Robot has verified that Respondent is bound by the Psi-Usa, Inc. d/b/a Domain Robot 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 June 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 30, 2009 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@amway-products.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <amway-products.com> domain name is confusingly similar to Complainant’s AMWAY mark.
2. Respondent does not have any rights or legitimate interests in the <amway-products.com> domain name.
3. Respondent registered and used the <amway-products.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alticor Inc., is one of the world’s largest direct-selling companies. Complainant distributes a product line of more than 450 personal care, nutrition and wellness, home care, home living, and commercial products. In connection with the provision of these services, Complainant registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”), including the AMWAY mark (i.e., Reg. No. 707,656 issued November 29, 1960).
Respondent registered the <amway-products.com> domain name on December 22, 2008. The disputed domain name resolves to a website that offers Complainant’s products for sale. Complainant contends that Respondent’s website was designed to create the false impression that Respondent is an authorized distributor of Complainant’s products.
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. 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.”).
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.
The Panel finds Complainant has established rights to the
AMWAY mark based upon its trademark registration with the USPTO. Therefore, the Panel recognizes Complainant’s
rights in the AMWAY mark for the purposes of Policy ¶ 4(a)(i). The Policy does not require that the mark be
registered in the country in which Respondent resides. See State Farm Mut. Auto. Ins.
Co. v. Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s
registrations with the United States Patent and Trademark Office of the
trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant
to Policy ¶ 4(a)(i).”); see also Williams-Sonoma,
Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is
irrelevant whether the complainant has registered its trademark in the country
of the respondent’s residence).
Respondent’s <amway-products.com>
domain name contains Complainant’s AMWAY mark in its entirety with the addition
of a hyphen, the generic term “products,” and the generic top-level domain “.com.” The Panel concludes that these additions, a
hyphen and the generic term “products,” do not create a notable distinction
between Complainant's mark and the disputed domain name. Additionally, the Panel concludes that the
affixation of a generic top-level domain does not serve to adequately
distinguish the disputed domain name from Complainant’s AMWAY mark. See
Alticor Inc. v. amwayproductinfo.com
Private Registration, FA 1220557 (Nat. Arb. Forum Oct. 8, 2009) (finding
that the respondent’s domain name was confusingly similar to the complainants
mark because the addition of the generic word “product,” which could describe
any business, does not add any distinguishing characteristics to the disputed
domain name); see also Eastman Chem. Co.
v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005) (“Therefore, the Panel
concludes that the addition… of a hyphen and the addition of the gTLD ‘.com’
are insufficient to distinguish Respondent’s domain name from Complainant’s
mark.”). Thus, the Panel concludes that
Respondent’s <amway-products.com>
domain name is confusingly similar to Complainant’s AMWAY mark under Policy ¶
4(a)(i).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <amway-products.com> domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may infer that Respondent lacks any rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent is using the <amway-products.com> domain name to sell Complainant’s products. Complainant alleges that Respondent is attempting to pass itself off as an authorized distributor of Complainant’s products, undoubtedly for financial gain. The Panel therefore concludes that such use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the subject domain name pursuant to Policy ¶ 4(c)(i) or (iii). See Nokia Corp. v. Eagle, FA 1125685 (Nat. Arb. Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Andersen Corp. v. Design Price Buy Inc., FA 1261838 (Nat. Arb. Forum June 16, 2009) (finding that the respondent’s attempt to pass itself off as an authorized distributor of the complainant’s products does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the subject domain pursuant to Policy ¶ 4(c)(i) or (iii)).
Moreover, the pertinent WHOIS information lists Respondent only as “Konstantin Becker a/k/a Sei-Sexy,” which suggests that Respondent is not commonly known by the <amway-products.com> domain name. Therefore, and in the absence of evidence to the contrary, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the pertinent WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name for purposes of the Policy where there was no evidence in the record showing that that respondent was commonly known by that domain name, including the pertinent WHOIS information, and where a complainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name).
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent engaged in bad faith
registration and use of its domain name pursuant to Policy ¶ 4(b)(iii). The Panel
agrees because Respondent’s use of a domain name confusingly similar to
Complainant’s mark, which resolves to a commercial website offering
Complainant’s products for sale, likely disrupts Complainant’s business. Therefore, the Panel concludes that
Respondent has engaged in bad faith registration and use of the contested
domain pursuant to Policy ¶ 4(b)(iii). See G.D. Searle & Co. v. Celebrex Cox-2
Vioxx.com, FA 124508 (Nat. Arb. Forum Oct. 16, 2002) (“Unauthorized
use of Complainant’s CELEBREX mark to sell Complainant’s products represents
bad faith use under Policy ¶ 4(b)(iii).”); see
also Fossil, Inc. v. NAS, FA
92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the <fossilwatch.com>
domain name from the respondent, a watch dealer not otherwise authorized to
sell the complainant’s goods, to the complainant).
Bad faith registration and use of the <amway-products.com> domain name under Policy ¶ 4(b)(iv) can
also be inferred based on Respondent’s use of a confusingly similar domain name
to attract Internet users to a website that offers Complainant’s products for
sale. The Panel may presume that
Respondent profits from such use.
Therefore, the Panel concludes that Respondent has engaged in bad faith
registration and use of the domain under Policy ¶ 4(b)(iv). See
Utensilerie Assoc. S.p.A. v. C & M, D2003-0159 (WIPO Apr. 22, 2003) (“The contents of the
website, offering Usag products, together with the domain name may create the
(incorrect) impression that Respondent is either the exclusive distributor or a
subsidiary of Complainant, or at the very least that Complainant has approved
its use of the domain name.”); see also
Compaq Info. Techs. Group, L.P. v. Waterlooplein Ltd., FA 109718 (Nat.
Arb. Forum May 29, 2002) (finding that a respondent’s use of the
<compaq-broker.com> domain name to sell a complainant’s products “creates
a likelihood of confusion with Complainant's COMPAQ mark as to the source,
sponsorship, or affiliation of the website and constituted bad faith pursuant
to Policy ¶ 4(b)(iv)”).
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 <amway-products.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: July 15, 2009
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