DECISION

 

Lucas Alvarez v. Meiji Highpro

Claim Number: FA2310002064919

PARTIES

Complainant is Lucas Alvarez ("Complainant"), Chile. Respondent is Meiji Highpro ("Respondent"), Thailand.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <btpharmalab.com>, (the "Domain Name") registered with Register.com, Inc..

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 5, 2023; Forum received payment on October 5, 2023.

 

On October 9, 2023, Register.com, Inc. confirmed by e-mail to Forum that the <btpharmalab.com> Domain Name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 October 11, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2023 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@btpharmalab.com. Also on October 11, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On November 1, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

Pursuant to Rule 12 of ICANN's Uniform Domain Name Dispute Resolution Policy, the Complainant was requested to

 

1)       send a dated and current English language version copy of Chilean trade mark No. 1,204,725, which was said to demonstrate the Complainant's current ownership of the trade mark BODY TECH, but which was not attached to the papers; and

2)        file an additional submission explaining why the trade mark registration details 1,244,325 sent as an attachment to the Complaint show the BODY TECH trade mark to be held in the name of Vitamin Shoppe Industries, Inc. an entity that is not a party to these proceedings; no later than Friday 10 November 2023. The Respondent was also given an opportunity to comment on these issues by the same date. No submissions were received from either party by the due date.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be cancelled.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant alleged that it owned a trade mark in BODYTECH registered in Chile since 2016, but did not provide evidence of the same in this Complaint.

 

It submitted that BODY TECH was confusingly similar to the Domain Name adding the generic term 'lab'.

 

It is not necessary for the purposes of this decision to rehearse the remaining submissions of the Complainant.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant did not evidence its ownership of rights in the mark BODYTECH on the papers submitted as alleged.

 

The Domain Name was registered on July 15, 2023.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel was unable to compare the Domain Name with the Complainant's alleged trade mark as the evidence requested of the Complainant's alleged current rights in BODYTECH was not submitted by the due date of November 10, 2023 as required by the Order dated November 2, 2023 issued by the Panel. Since the Complainant has failed to prove the first element that the Domain Name is identical or confusingly similar to a mark in which the Complainant has rights, the case is dismissed and it is not necessary to make any further determinations in this case.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <btpharmalab.com> domain name REMAIN WITH Respondent.

 

 

 

 

Dawn Osborne, Panelist

Dated: November 13, 2023