Amity Holdings, LLC v. Pallis Press / Woratanat Ratchatanyatorn / Mehmet Mehliz / oyunstore.com / aydın dedeoğlu
Claim Number: FA2012001923893
Complainant is Amity Holdings, LLC ("Complainant"), represented by Jake Neu of Bradley Arant Boult Cummings LLP, Tennessee, USA. Respondents are Pallis Press, Greece / Woratanat Ratchatanyatorn, Thailand / Mehmet Mehliz / oyunstore.com, Turkey / aydın dedeoğlu, Turkey ("Respondents").
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mymeticore.com> (Respondent Pallis Press), registered with Amazon Registrar, Inc.; <meticoreweightloss.com> (Respondent Woratanat Ratchatanyatorn) and <mymeticoreofficialstore.com> (Respondent Mehmet Mehliz), registered with NameCheap, Inc.; and <meticoresale.online> (Respondent aydın dedeoğlu), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 4, 2020; the Forum received payment on December 4, 2020.
On December 7, 2020, Amazon Registrar, Inc. confirmed by email to the Forum that the <mymeticore.com> domain name is registered with Amazon Registrar, Inc. and that Respondent Pallis Press is the current registrant of the name and is bound by the Amazon Registrar, Inc. 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"). Corresponding verification messages were received from NameCheap, Inc., and PDR Ltd. d/b/a PublicDomainRegistry.com in relation to the other disputed domain names and Respondents on December 7, 2020, and December 8, 2020, respectively.
On December 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2021 by which Respondents could file a Response to the Complaint, via email to all entities and persons listed on Respondents' registrations as technical, administrative, and billing contacts, and to postmaster@mymeticore.com, postmaster@meticoreweightloss.com, postmaster@meticoresale.online, and postmaster@mymeticoreofficialstore.com. Also on December 15, 2020, the Written Notice of the Complaint, notifying Respondents of the email addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents' registrations as technical, administrative, and billing contacts.
A timely Response was received from Respondent Mehmet Mehliz and determined to be complete on December 17, 2020.
On December 18, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
On December 18, 2020, after the Forum notified the Parties of the Panel's appointment, Respondent Pallis Press objected to the inclusion of its domain name <mymeticore.com> in the same proceeding as the other disputed domain names, and stated that it intended to file a separate Response. Respondent Pallis Press renewed its objection on December 19, 2020.
The Panel entered the following procedural order on December 21, 2020:
The Panel's consideration of the Complaint, including whether it may properly relate to multiple domain names, shall be suspended until January 4, 2021, or until such later date to which the Forum may grant an extension for submission of a Response.
Should any Respondent make a timely election of a three-member Panel and tender payment of the applicable fee, the Forum is directed to hold such payment pending the Panel's preliminary determination as to whether the proceeding may continue in relation to multiple domain names. In the event that the Panel dismisses the Complaint as to one or more domain names for which a Respondent has elected a three-member Panel and tendered payment of the applicable fee, such fee shall be returned or refunded by the Forum.
The time period within which the Panel shall be required to render its Decision is extended until further directive of the Panel.
A timely Response was received from Respondent Pallis Press and determined to be complete on January 4, 2021.
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.
Complainant requests that the domain names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the disputed domain names in this proceeding are effectively controlled by the same person or entity. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions sets forth factors that are normally considered when a complainant is filed against multiple respondents:
[P]anels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.11 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/.
Complainant asserts that Respondents are all aliases for a single entity, noting that each domain name markets and sells a weight loss pill under the brand name METICORE, marketing it in the same manner and with the same or similar information, and linking to the same online store; and that none of the registrants have a complete and accurate address on file, suggesting that the registration data are fictitious.
Respondent Mehmet Mehliz identifies himself as the registrant of <mymeticoreofficialstore.com>, and his Response addresses only that domain name.
Respondent Pallis Press directly challenges Complainant's assertion that Respondents are aliases for a single entity. Respondent Pallis Press is the registrant of <mymeticore.com>, the domain name that is used to host the online store linked to by the other three domain names. Respondent Pallis Press states that it permits other entities (apparently including the other three Respondents) to advertise its product on their own independent websites as affiliate marketers through an affiliate marketing platform, but is not aware of the identity or location of these sublicensees.
While all of the disputed domain names appear to promote the same product, linking to Respondent Pallis Press's website and in many instances containing text and images taken or adapted from that site, that is substantially all that they share in common. The differences in names, locations, contact information, registrars, registration dates, nameservers, websites, and Responses in this proceeding all suggest that they are very likely four distinct people or entities.
The Panel therefore concludes that it is inappropriate under Paragraph 3(c) of the Rules to include the four Respondents and domain names in a single proceeding under the Policy. The Panel therefore dismisses without prejudice the Complaint with respect to the disputed domain names <mymeticore.com> (Respondent Pallis Press), <meticoreweightloss.com> (Respondent Woratanat Ratchatanyatorn), and <meticoresale.online> (Respondent aydın dedeoğlu), and considers it only with respect to the domain name <mymeticoreofficialstore.com> (Respondent Mehmet Mehliz).
A. Complainant
Complainant uses the trademark MEDICORE in connection with commercial sales of diabetic testing supplies, including needles, syringes, and lancets. Complainant owns a United States trademark registration for MEDICORE in the form of a standard character mark, issued in 2016 and reflecting a first use date of 2010. Complainant also asserts common-law rights in the mark resulting from substantial and continuous use.
Respondent Mehmet Mehliz ("Respondent") registered the disputed domain name <mymeticoreofficialstore.com> in October 2020, and is using it for a website promoting a weight loss pill under the brand name METICORE. Complainant contends that there is a connection between diabetic testing supplies and weight loss products, since being overweight is a well-known risk factor for type 2 diabetes, and people seeking diabetic supplies are therefore likely to be interested in weight loss products. Complainant states that beginning in August 2020 it began receiving a steady stream of calls and emails regarding information about or purchases of METICORE weight loss pills, and in October 2020 received a package from someone attempting to return METICORE products for a refund. (It is unclear the extent to which this confusion is connected to Respondent.) Complainant alleges that various statements on Respondent's website are false or misleading, including references to FDA approval, and asserts that the manner in which the products are being marketed is in violation of applicable law.
Complainant contends on the above grounds that the disputed domain name <mymeticoreofficialstore.com> is confusingly similar to its MEDICORE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent Mehmet Mehliz submitted the following Response:
Hello I m owner of mymeticoreofficialstore.com
My website and domain name doesn’t connected to any Medicore product. as you see my domain name is Mymeticore and it is not a brand and trade marked by Amity Holdings
My website also doesn’t promote any product with FDA Approved
My website is live and you can not see any FDA approved keyword or picture on my website
The Panel finds that the disputed domain name <mymeticoreofficialstore.com> is confusingly similar to a mark in which Complainant has rights, and that Respondent Mehmet Mehliz lacks rights or legitimate interests in respect of the disputed domain name.
The Panel further finds that Complainant has not proved that the disputed domain name <mymeticoreofficialstore.com> was registered and is being used 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.
The disputed domain name <mymeticoreofficialstore.com> incorporates Complainant's registered MEDICORE mark, substituting a letter "T" for the phonetically similar "D," and adding the generic terms "my," "official," and "store," and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Fandango, Inc. v. Modern Empire Internet Ltd., FA 1359315 (Forum Dec. 20, 2010) (finding <fantango.com> confusingly similar to FANDANGO); Pfizer Inc v. lipidor.com DNS Services, D2003-1099 (WIPO Apr. 8, 2003) (finding <lipidor.com> confusingly similar to LIPITOR); IM Production v. Mei Mi, Weben Ben, Wanda Guzman, D2013-0401 (WIPO Apr. 22, 2013) (finding <isabelmarantofficialstore.com> confusingly similar to ISABEL MARANT). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates a slight variation on Complainant's registered mark without authorization, and it is being used to market products that are tangentially related to those marketed by Complainant. Complainant has alleged with supporting evidence that the manner in which these products are being marketed is in violation of applicable U.S. law. The Panel notes that the website at <mymeticoreofficialstore.com> includes the following images:
[IMAGE OMITTED OF “FDA APPROVED” LOGO], [IMAGE OMITTED OF “MADE IN USA” LOGO], [IMAGE OMITTED OF “MADE IN A FDA REGISTERED FACILITY” LOGO].
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating a slight variation on Complainant's mark and is using it to market products that are tangentially related to Complainant's products in an apparently unlawful manner. Respondent has offered only a cursory Response, much of which is directly contradicted by the evidence before the Panel. Nonetheless, the Policy requires Respondent to have been aware of Complainant or its mark when registering the domain name, and the registration must in some way have been targeted at Complainant or its mark. See, e.g., WorldClaim Global Claims Management v. Bishop, Atticus / Bishop, FA 1694577 (Forum Nov. 7, 2016) ("[R]egistration in bad faith presupposes that the respondent knew of, and targeted, the complainant and its mark at the time of registering the disputed domain name"); Kanal, Inc. v. Domain Admin, FA 1478238 (Forum Nov. 13, 2015) ("To have registered the domain name in bad faith, Respondent must have been aware of Complainant or its mark when he registered the domain name, and the registration must in some way have been targeted at Complainant or its mark.").
The scant evidence available to the Panel suggests that Respondent likely selected the disputed domain name <mymeticoreofficialstore.com> because it incorporates the name of the METICORE product of Respondent Pallis Press, for whom Respondent Mehmet Mehliz apparently serves as an independent affiliate marketer, and not because of its similarity to Complainant's MEDICORE mark. Respondent's registration of <mymeticoreofficialstore.com> therefore does not appear to have been targeted at Complainant or its mark.
The Panel could elect to draw inferences adverse to Respondent based upon the lack of credible information in his Response, and thereby support a finding of bad faith. See, e.g., Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (failure to come forward with evidence "uniquely within the knowledge and control of the respondent . . . is tantamount to admitting the truth of complainant's assertions"). In light of the circumstances of this case, however, the Panel declines to draw such inferences. Having dismissed Respondent Pallis Press from this proceeding, the Panel has not considered the substantive allegations and evidence contained in its Response, including plausible arguments that it is engaged in bona fide use of METICORE for weight loss supplements and that such use does not infringe on Complainant's MEDICORE mark. Complainant may well have a legitimate dispute with the use of METICORE for Pallis Press's product and in the domain names used to market that product by Respondent Mehmet Mehliz and others, but this proceeding is not the appropriate forum for resolving disputes of that nature.
[The Policy] calls for administrative resolution for only a small, special class of disputes. Except in cases involving "abusive registrations" made with bad-faith intent to profit commercially from others' trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed by the parties) and calls for registrars not to disturb a registration until those courts decide. The adopted policy establishes a streamlined, inexpensive administrative dispute-resolution procedure intended only for the relatively narrow class of cases of "abusive registrations." Thus, the fact that the policy's administrative dispute-resolution procedure does not extend to cases where a registered domain name is subject to a legitimate dispute (and may ultimately be found to violate the challenger's trademark) is a feature of the policy, not a flaw. The policy relegates all "legitimate" disputes — such as those where both disputants had longstanding trademark rights in the name when it was registered as a domain name — to the courts; only cases of abusive registrations are intended to be subject to the streamlined administrative dispute-resolution procedure.
Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy ¶ 4.1(c) (ICANN Oct. 24, 1999), available at http://www.icann.org/udrp/udrp-second-staff-report-24oct99.htm.
For the reasons set forth above, the Panel finds that Complainant has not proved for purposes of this proceeding that the disputed domain name <mymeticoreofficialstore.com> was registered and is being used in bad faith.
The Complaint is DISMISSED without prejudice with respect to the domain names <mymeticore.com>, <meticoreweightloss.com>, <meticoresale.online>, and Respondents Pallis Press, Woratanat Ratchatanyatorn, and aydın dedeoğlu.
With regard to the domain name <mymeticoreofficialstore.com> and Respondent Mehmet Mehliz, having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <mymeticoreofficialstore.com> domain name REMAIN WITH Respondent Mehmet Mehliz.
David E. Sorkin, Panelist
Dated: January 5, 2021
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