Universal Protein Supplements Corporation d/b/a Universal Nutrition v. Tulip Trading Company
Claim Number: FA1701001714388
Complainant is Universal Protein Supplements Corporation d/b/a Universal Nutrition (“Complainant”), represented by Craig A. Beaker of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is Tulip Trading Company (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwanimalpak.com>, registered with Key-Systems GmbH.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 26, 2017; the Forum received payment on January 26, 2017.
On January 30, 2017, Key-Systems GmbH confirmed by e-mail to the Forum that the <wwwanimalpak.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 January 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 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@wwwanimalpak.com. Also on January 31, 2017, 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 March 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading supplier of sports nutrition health products worldwide.
Complainant uses the ANIMAL PAK mark to market its nutritional supplements.
Complainant holds a registration for the ANIMAL PAK trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,437,306, registered March 20, 2001).
Respondent registered the domain name <wwwanimalpak.com> on or about December 4, 2016.
The domain name is confusingly similar to Complainant’s ANIMAL PAK mark.
Respondent has not been commonly known by the domain name.
Complainant has not authorized Respondent to use its ANIMAL PAK mark.
Respondent’s use of the domain name is not in connection with a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use.
The domain name redirects to a landing page with links designed to generate click-through advertising revenue for the benefit of Respondent.
Respondent has no rights to or legitimate interests in the domain name.
Respondent’s registration and use of the domain name is an attempt to disrupt Complainant’s business by attracting Internet users to its website and profiting by linking them to various third party websites, some of which sell the products of Complainant’s commercial competitors.
Respondent knew of Complainant and its rights in the ANIMAL PAK mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 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 ANIMAL PAK trademark by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum August 9, 2015) (finding that a UDRP complainant had rights in its mark through its registration of the mark with the United States Patent and Trademark Office).
This is so without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Saint Kitts and Nevis). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <wwwanimalpak.com> domain name is confusingly similar to Complainant’s ANIMAL PAK mark. The domain name contains the mark in its entirety, less only the space between its terms, and merely adds the letters “www,” the common abbreviation for “World Wide Web,” and the generic Top Level Domain (“Gtld”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Little League Baseball, Inc. v. Domain Manager, FA 1651999 (Forum January 18, 2016) (concluding, under Policy ¶ 4(a)(i), that the addition of “www” to the mark of another in creating a domain name takes advantage of a common typing error, and thus does not distinguish the domain name from the mark so as to avoid a finding of confusingly similar).
See also Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015), finding, under Policy ¶ 4(a)(i), that:
Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Septembeer 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <wwwanimalpak.com> domain name, and that Complainant has not authorized Respondent to use the ANIMAL PAK mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Tulip Trading Company,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that, because the relevant WHOIS record listed the registrant of the <statefarmforum.com> domain name only as “Dale Anderson,” that respondent was not commonly known by the domain name and had thus failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii).
We next observe that Complainant asserts, without objection from Respondent, that Respondent’s <wwwanimalpak.com> domain name redirects Internet users to a landing page carrying links to third-party websites, some of which compete with the business of Complainant by selling competing goods. This employment of the domain name is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy 4(c)(iii). See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum August 11, 2015) (finding, under Policy ¶¶ 4(c)(i) and 4(c)(iii), that a respondent was not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name where that respondent used the domain name to host links to third-party commercial websites that competed directly with a UDRP complainant’s business).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s registration and use of the <wwwanimalpak.com> domain name as alleged in the Complaint disrupts
Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015):
The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).
We are also convinced by the evidence that Respondent’s registration and use of the <wwwanimalpak.com> domain name, which we have found to be confusingly similar to Complainant’s ANIMAL PAK trademark, is an effort by Respondent to profit financially from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this, too, is proof of Respondent’s registration and use of the domain name in bad faith. See Staples, Inc. v. HANNA EL HIN , FA1404001557007 (Forum June 6, 2014):
Therefore, the Panel finds that Respondent registered and is using the … domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the … domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the ANIMAL PAK mark when it registered the <wwwanimalpak.com> domain name. This further demonstrates Respondent’s bad faith in registering that domain name. See, for example, Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding, under Policy ¶ 4(a)(iii), bad faith registration of a domain name where a respondent was "well-aware of the complainant's … mark at the time of [its domain name] registration.”).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <wwwanimalpak.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 3, 2017
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