Academy of Nutrition and Dietetics v. Gabriella Garlo
Claim Number: FA2012001926530
Complainant is Academy of Nutrition and Dietetics (“Complainant”), represented by Caitlin R. Byczko of Barnes & Thornburg LLP, Illinois, USA. Respondent is Gabriella Garlo (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eatright.pro>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 29, 2020; the Forum received payment on December 29, 2020.
On January 1, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <eatright.pro> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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”).
On January 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2021 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@eatright.pro. Also on January 5, 2021, 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 January 28, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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" 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is the world's largest organization of food and nutrition professionals. Founded in Cleveland, Ohio, in 1917, Complainant represents more than 100,000 credentialed practitioners — registered dietitians, registered dietitian nutritionists, dietetic technicians, registered, and other dietetics and nutrition professionals holding undergraduate and advanced degrees in nutrition and dietetics, and students — and is committed to improving the nation's health and advancing the profession of dietetics through research, education and advocacy. Complainant provides various goods and services, including printed publications, association services, educational services, organizing educational conferences, and related services. Complainant has rights in the EAT RIGHT mark through its registration of the mark in the United States in 2010.
Complainant alleges that the disputed domain name is identical or confusingly similar to its EAT RIGHT mark as it wholly contains the mark and merely adds the generic top-level domain (“gTLD”) “.pro”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to use the EAT RIGHT mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the disputed domain name in connection with hyperlinks that compete with Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered a confusingly similar domain name and uses it in connection with hyperlinks that compete with Complainant. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark EAT RIGHT dating back to at least 2010 and uses it to provide various goods and services, including printed publications, association services, educational services, organizing educational conferences, and related services regarding food and nutrition.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving web site displays click-through advertising links to products and services that compete with those of Complainant.
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.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name fully incorporates Complainant’s EAT RIGHT mark and merely adds the “.pro” gTLD to Complainant’s mark. The addition of a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bittrex, Inc. v. HOUSNTA BENSLEM, FA 1760232 (Forum Jan. 3, 2018) (“[S]ince the disputed domain name differs from the trademark only by the addition of the gTLD “.cam” the Panel finds the domain name to be legally identical to the trademark.”). Therefore, the Panel finds that the disputed domain name is identical to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized or licensed to Respondent any rights in the EAT RIGHT mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Gabriella Garlo”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name in connection with competitive hyperlinks. Specifically, the resolving website is a landing page featuring pay-per-click advertisements related to and that compete with Complainant. Using a confusingly similar domain name to promote hyperlinks in competition with a complainant may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”) Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name in connection with competitive hyperlinks. Using a confusingly similar domain name to promote hyperlinks in competition with a complainant can evidence bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Sandhills Publishing Company v. sudeep banerjee / b3net.com, Inc., FA 1674572 (Forum June 17, 2016) (finding that the respondent took advantage of the confusing similarity between the <machinerytraderparts.com> domain name and the complainant’s MACHINERY TRADER mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eatright.pro> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 28, 2021
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