DECISION

 

Lucas Alvarez/Nutraline Ltda. v. JoJoJo Gravity

Claim Number: FA2311002069264

PARTIES

Complainant is Lucas Alvarez/Nutraline Ltda. ("Complainant"), Chile. Respondent is JoJoJo Gravity ("Respondent"), Thailand.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bt-phamaceutical.com>, registered with Register.com, Inc.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 2, 2023. Forum received payment on November 2, 2023.

 

On November 6, 2023, Register.com, Inc. confirmed by e-mail to Forum that the <bt-phamaceutical.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 November 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 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@bt-phamaceutical.com. Also on November 9, 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 30, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be cancelled.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Lucas Alvarez/Nutraline Ltda., makes the following submissions:

 

"First point: Confusion

Nutraline Ltda. is a specialty retailer and direct marketer of nutritional products such as vitamins and minerals, nutritional supplements, herbs sports nutrition formulas with head office located at Av. Del Valle 577 Oficina 704 SANTIAGO, Santiago, 8580678 Chile.

 

Nutraline Ltda. own Bodytech trademark registration number 1204725 with INAPI (Chile) since 2016.

 

The respondent site was registered on 18 July 2023 which is more than 7 years after trademark registration date.

 

Respondent domain name registration tactic by merely adding the word "phamaceutical" behind is insufficient to distinguish the at-issue domain. See attach files for trademark further detail.

 

Second Point: Right/Legitimate interest

The respondent offer a variety of pharmaceutical products for sale under the BODYTECH mark, most of which are illegal (not approved for human consumption), example a product called BODYTECH CLENBUTEROL.

 

Third point: Bad faith

Complaint strongly convinced that respondent's sole goal is to seek monetary gain from falsifying customer perception that the two parties are related.

 

It is obvious that, complaint has never authorized the respondent to use our trademark as part of domain name whether by region or globally.  

 

We strongly believe that the current domain squatter of Bt-phamaceutical.com and the previous domain squatter of bt-phamaceutical.com which the decision was granted toward our side are the same group of person per the below screenshot.

 

We strongly believe that the whois information is inaccurate due to the website nature illegal activity and use of privacy protect and cloudflare is employ to hide its real identity. https://bt-phamaceutical.com from the website own landing page footer show physical address located at "Keltenring 33,53878 Euskirchen Germany" but after searching through googlemap the address turn out to be a "residential address". This is a 100% confirmation that the company identity is fake, the manufacturing address is fake."

 

Complainant identifies the following previous UDRP cases as relevant:

Lucas Alvarez v. Stefen Biahof, FA2047627 (Forum, July 9, 2023) <bodytechpharmalab.com> and Lucas Alvarez v. Lotto Samule, FA2062178 (Forum, October 13, 2023) <bodytech-lab.com>.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has failed to establish all the elements entitling it to relief.

 

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

Complainant claims that Nutraline Ltda. has rights in the BODYTECH trademark through registration No. 1204725 with INAPI (Chile) since 2016. In support of this, Complainant annexes to the Complaint a copy of INAPI registration No. 1244325 for BODYTECH, registered on April 17, 2017 in the name of Vitamin Shoppe Industries Inc. There is no evidence of assignment or licence of that mark to Nutraline Ltda. 

 

However, the Panel has searched the INAPI database, which shows that Nutraline Ltda. is indeed the registrant of the BODYTECH mark, registration No. 1204725 with INAPI (Chile).

 

Accordingly, the Panel finds that Nutraline Ltda. has rights in the BODYTECH mark.

 

Ignoring the inconsequential ".com" gTLD, Respondent's <bt-phamaceutical.com> domain name is clearly not identical to the BODYTECH mark.

 

As to whether the domain name is confusingly similar to the mark, the standing (or threshold) test for confusing similarity involves a relatively straightforward side-by-side comparison between the mark and the domain name:  WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7.

 

Neither of the two cases Lucas Alvarez v. Stefen Biahof, FA2047627 (Forum, July 9, 2023) <bodytechpharmalab.com> and Lucas Alvarez v. Lotto Samule, FA2062178 (Forum, October 13, 2023) <bodytech-lab.com> involved the <bt-phamaceutical.com> domain name nor a domain name substituting "bt" for "bodytech".

 

In the absence of any evidence that BT is a well-known abbreviation of BODYTECH, the Panel is not satisfied that the <bt-phamaceutical.com> domain name is confusingly similar to the BODYTECH mark, despite the misspelled word "phamaceutical" evoking Complainant's business.

 

Accordingly, the Panel finds that Complainant has not established this element.

 

Rights or Legitimate Interests and Registration and Use in Bad Faith

In light of the Panel's finding above, it is unnecessary to consider these elements.

 

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 <bt-phamaceutical.com> domain name REMAIN WITH Respondent.

 

 

Alan L. Limbury, Panelist

Dated: December 1, 2023