Meth Lab Cleanup, LLC v. Tony Branch
Claim Number: FA1212001477963
Complainant is Meth Lab Cleanup, LLC (“Complainant”), represented by Robert H. Thornburg of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Florida, USA. Respondent is Tony Branch (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <methlabcleanup.us>, registered with GoDaddy.com, LLC.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 28, 2012; the National Arbitration Forum received the hard copy of the Complaint on January 8, 2013.
On December 31, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <methlabcleanup.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On January 8, 2013, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 28, 2013 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(2) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 30, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 owns two federal trademark registrations for the METH LAB CLEANUP LLC mark with the United States Patent and Trademark Office (“USPTO”): Reg. No. 3,662,398 registered August 4, 2009 and
Reg. No. 3,662,399 registered August 4, 2009.
2. Complainant also owns the domain name <methlabcleanup.com>.
3. Respondent registered the domain name <methlabcleanup.us> on July 25, 2010 without the permission of Complainant.
4. Respondent’s <methlabcleanup.us> domain name wholly incorporates Complainant’s registered mark, which establishes confusing similarity.
5. Respondent has no rights or legitimate interests in the disputed domain name.
6. Respondent is not commonly known by the disputed domain name but is instead known as “Dallas Locksmith,” appearing to focus primarily on automotive lock systems.
7. Complainant has not given Respondent permission to use the mark.
8. Respondent is not related to or licensed by Complainant.
9. Respondent uses the disputed domain name as a parked website for purposes of directing consumers of Complainant to Respondent’s website, for purposes of showcasing certain paid-for links of competitors of Complainant, which is not a bona fide of goods or services or a fair use.
10. Nothing on the resolving website denotes that Respondent performs services that include decontamination of clandestine methamphetamine drug labs.
11. Respondent registered the domain name in bad faith primarily for the purpose of disrupting the business of Complainant and/or forwarding that business to Respondent’s website relating to locksmith services.
12. Respondent parks the website in a manner that advertises the products and services of registrar, which is constitutes bad faith. The use of parked sites for purposes of diverting traffic for pecuniary gain is in bad faith and in violation of the Policy. Many of the links found on the website are links to direct competitors of Complainant, which further supports a finding of bad faith.
13. The bad faith is escalated as Respondent has recently put up the implicated domain name in an auction with the hope of monetizing it.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 or 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.”).
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Complainant owns two federal trademark registrations for the METH LAB CLEANUP LLC mark with the USPTO: Reg. No. 3,662,398 registered August 4, 2009 and Reg. No. 3,662,399 registered August 4, 2009. The Panel finds that these USPTO trademark registrations suffice to prove Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant asserts that Respondent’s <methlabcleanup.us> domain name wholly incorporates Complainant’s registered mark, which establishes confusing similarity. The Panel notes that the disputed domain name differs from the mark only in the removal of the spaces between the terms, the deletion of the abbreviation “LLC,” and the addition of the country-code top-level domain (“ccTLD”) “.us.” The Panel finds that removal of the “LLC” portion of the mark is not significant enough to distinguish the disputed domain name from the mark. Furthermore, neither the removal of spaces nor the addition of a ccTLD prevents a finding of confusing similarity. See CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Nat. Arb. Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under UDRP ¶ 4(a)(i)).
Thus, Complainant has satisfied Policy ¶ 4(a)(i).
The Panel notes that there is no evidence in the record to conclude that Respondent owns any service marks or trademarks that reflect the <methlabcleanup.us> domain name. Therefore, the Panel finds that Respondent does not have rights and legitimate interests pursuant to Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because Respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it has no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name. Complainant alleges that Respondent has no permission to use Complainant’s mark and is wholly unrelated to and unlicensed by Complainant. The Panel notes that the WHOIS information for the disputed domain name indicates that “Tony Branch” is the registrant of the domain name. Based on the evidence in record and the lack of affiliation with or permission by Complainant, the Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant asserts that Respondent is using the disputed domain name as a parked website for purposes of directing consumers of Complainant to Respondent’s website for the purpose of showcasing certain paid-for links of competitors of Complainant. Complainant submits a screenshot of Respondent’s website, showing that it is parked in a manner that allows the registrar’s advertisers to showcase links. Complainant contends that Respondent uses the resolving website as a parked website in order to divert traffic for pecuniary gain. The Panel finds that parking a resolving website or posting pay-per-click links to third-party websites or a complainant’s competitors does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or Policy ¶ 4(c)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under the UDRP).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii)).
Complainant contends that Respondent registered the disputed domain name in bad faith primarily for the purposes of disrupting the business of Complainant and/or forwarding that business to Respondent’s website. Complainant has submitted a screenshot of the resolving website, which, the Panel notes, shows a variety of presumably pay-per-click links. Among these are links to Complainant’s competitors, such as “Crime Scene Cleanup” and “Crime Cleanup Training.” The Panel finds that using a resolving website to post links to competitors of Complainant facilitates competition with Complainant, thereby disrupting Complainant’s business and demonstrating bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under UDRP ¶ 4(b)(iii)).
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <methlabcleanup.us> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: February 12, 2013
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