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and Mediation Center
Herbalife International, Inc. v. Surinder
Case No. D2005-0765
1. The Parties
The Complainant is Herbalife International, Inc., Los Angeles, California, United States of America, represented by Gowling Lafleur Henderson, LLP, Canada.
The Respondent is Surinder S. Farmaha, Mississauga, Ontario, Canada.
2. The Domain Name and Registrar
The disputed domain name <herbalifepath.com> (herein the “domain
name in dispute”) is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2005. On July 19, 2005, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name in dispute. On July 20, 2005, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced July 27, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response August 17, 2005. The Response was filed with the Center August 11, 2005.
The Center appointed J. Nelson Landry, Jacques A. Lйger and Leon Trakman as panelists in this matter on September 12, 2005. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant requested permission to file a reply.
The Panel noted that the Respondent did not provide the certification pursuant
to paragraph 5(b)(viii) of the Rules. Consequently the Panel issued a Procedural
Order on September 15, 2005, requesting the Respondent to provide the certification
to his Response, permitted the Complainant to submit a Reply for consideration
by the Panel within five days of the Order and gave leave to the Respondent
to file comments thereon within the five days following reception. The Panel
did not receive any certification from the Respondent nor any Reply from the
Complainant by the required deadline.
4. Factual Background
The Complainant is a U.S. corporation, one of several jointly-owned and operated corporate entities that constitute a worldwide business (herein “the Complainant” or collectively, “Complainant Herbalife”). Founded in 1980, Complainant Herbalife is a global network marketing company that sells weight management, nutritional supplement and personal care products intended to support a healthy lifestyle, namely over 130 products in fifty-nine (59) countries through a network of more than one million independent distributors.
Since it started in 1980, its sales have been significant and in 2003 and 2004 alone, it generated net sales of at least USD$1.2 billion in each year, while in Canada, net sales were of USD150 million since 1998.
Complainant Herbalife uses the Internet as an integral
part of its business and its principal website located at “www. herbalife.com”
provides consumers and distributors with valuable information on HERBALIFE products.
During the months of September, October and November of 2004, the “www.herbalife.com”
website attracted at least 260,000 visitors, respectively.
The Complainant is the owner of the four trademark registrations in the United States of America and at least one in Canada comprised of the expression HERBALIFE alone or with a design (collectively, the “HERBALIFE Trademarks”), and the first HERBALIFE Trademark has been used continuously since at least as early as 1980 in the United States of America.
The Respondent was a registered distributor of the Complainant between November 1, 1999 and November 25, 2001, which relationship was discontinued on account of non renewal by the Respondent and on July 25, 2002, he registered the domain name in dispute <herbalifepath.com>.
The Respondent has not been licensed, or otherwise authorized, to register or use the HERBALIFE trademark in any manner, including in, or as part of the domain name in dispute.
The Complainant, through its legal counsel, issued a cease and desist letter, advising the Respondent of its rights in the HERBALIFE Trademarks, and requesting that the domain name in dispute be transferred to it and, in the absence of a response, the Complainant issued another correspondence on March 11, 2005. On March 22, 2005, the Respondent provided his response wherein he acknowledged that he registered the domain name in dispute, allegedly after checking every thing to see and made sure it was not a company name or there was no trademark on this name.
On March 31, 2005, in a telephone call, in an attempt to resolve the matter amicably, the Respondent indicated that, at the time of registration, he had planned to associate the domain name in dispute with an online HERBALIFE directory containing a list of Herbalife distributors sorted by geographical location, which directory was intended to be used by consumers searching for a Herbalife distributor in their location.
Shortly thereafter, the domain name in dispute became
reassociated with the Domain Sponsor.com website.
The domain name registration expired on July 25, 2005.
Pursuant to a verification recently made by the WIPO Center, the Panel has been
informed that the registration of the domain name in dispute had been renewed
in the name of the Respondent by the concerned Registrar.
5. Parties’ Contentions
The Complainant submits that it is the owner of the
four trademark registrations in the United States of America containing, or
comprised of, HERBALIFE of which three registrations are incontestable; that
the HERBALIFE Trademarks have been used continuously since at least as early
as 1980 in the United States, that as a result of extensive use and promotion
in Canada, the United States and worldwide, the Trademarks have achieved vast
public recognition and awareness, exceptional reputation and fame, as it has
previously been held by a WIPO UDRP panel. See Herbalife International of
America, Inc. v. myherbalife. com, WIPO
Case No. D2002-0101.
The Complainant submits that the domain name in dispute
is identical or confusingly similar to its famous Trademarks in which the Complainant
has incontestable registered rights and that the fact that the domain name in
dispute incorporates the whole of a Complainant’s Trademark is sufficient
to support a finding of confusion as it has been held in earlier UDRP decisions.
See Herbalife International of America, Inc. v. myherbalife. com, WIPO
Case No. D2002-0101, Xerox Corporation v. Imaging Solution, WIPO
Case No. D2001-0313, and RRI Financial, Inc. v. Ray Chen, WIPO
Case No. D2001-1242. Furthermore, a registrant may not avoid confusion by
appropriating another’s entire mark in a domain name and adding a generic
or non-distinctive term in a domain name, according to the principle confirmed
in Quixtar Investments, Inc. v. Dennis Hoffman, WIPO
Case No. D2000-0253, Nikon, Inc. and Nikon Corporation v. Technilab,
Inc., Magnum Piering, Inc. v. Mudjackers, WIPO
Case No. D2000-1525 and Chanel, Inc. v. Estco Technology Group, WIPO
Case No. D2000-0413, nor by the addition of a generic top level domain,
such as “.com”, which is without legal significance in determining
the issue of similarity. See JP. Morgan v. Resource Marketing, WIPO
Case No. D2000-0035, Nokia Corporation v. Nokiagirls.com a.k.a. IBCC,
WIPO Case No. D2000-0102 and Louis
Vuitton Malletier v. Enrico Villa, WIPO
Case No. D2000-0721.
Secondly, the Complainant contends that the Respondent
has no rights or legitimate interest in the domain name in dispute in that a
respondent only has a right to a domain name if the trademark owner has specifically
granted that right. See AVENTIS Pharma S.A. and Merrell Pharmaceuticals Inc.
v. Rx USA, WIPO Case No. D2002-0290,
The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co., Inc.,
WIPO Case No. D2000-0113, Nokia Corporation
v. Nokia Ringtones & Logos Hotline, WIPO
Case No. D2001-1101 and Motorola Inc. v. NewGate Internet Inc., WIPO
Case No. D2000-0079. Furthermore, the unauthorized registration of a complainant’s
trademark as a domain name undermines a claim of bona fide use under
the Policy. See Xerox Corporation v. Imaging Solution, supra; Canadian
Tire Corporation, Limited v. Mike Rollo, WIPO
Case No. D2002-1069 and Maruti Udyog Limited v. E-Enterprises, WIPO
Case No. D2000-1039.
The Complainant submits that the Respondent has not been licensed, or otherwise authorized, to register or use the Trademarks in any manner in, or as part of, a domain name. Again, there is no evidence to suggest that the Respondent has ever used, or demonstrated preparations to use, the domain name in dispute, or a name corresponding to the domain name in dispute, in connection with a bona fide offering of goods or services even as an online Herbalife distributor directory. Further, there is no evidence to suggest that the Respondent has been commonly known by the domain name in dispute. There is also no evidence that the Respondent is making, or intends to make, a legitimate non-commercial or fair use of the domain name in dispute.
The Complainant contends that when it became aware
of the Respondent’s registration and use of the domain name in dispute,
the said domain name was parked at a website hosted by Domain Sponsor.com which
website has been addressed by many UDRP panels. See Southern Communications
Services, Inc. d/b/a Southern LINC v. Henry Chan, WIPO
Case No. D2004-0214, Lowen Corporation d/b/a Lowen Sign Company v. Henry
Chan, WIPO Case No. D2004-0430, PepsiCo,
Inc. v. LaPorte Holdings, Inc. and Pepsiemployment.com alkla Henry Chan,
WIPO Case No. D2005-0087, Ameriquest Mortgage
Company v. Ling Shun Shing, WIPO
Case No. D2003-0294, B and JGarcia, S.L., Arnedo, Spain v. Gorila,
WIPO Case No. D2004-1071.
According to the Complainant, Domain Sponsor.com operates
a revenue program whereby domain name holders who redirect Internet users to
its websites are eligible for a referral fee allegedly offering the “highest
payouts” and the website also adds that the program helps domain holders
maximize revenue from their parked domains by providing a straightforward and
easy-to-use monetization system.
The panel in PepsiCo, Inc. v. LaPorte Holdings,
Inc. and Pepsiemployment. com alkla Henry Chan, supra, held that parking
domain names with Domain Sponsor.com has become an increasingly “popular”
and “crude” practice among cybersquatters and that using the domain
names to divert web traffic to search engines and linking portals is done for
a financial benefit.
The Complainant alleges that the Respondent’s website located at the domain name in dispute on February 23, 2005, prominently displayed “Herbalife”, three (3) additional links entitled “Herbalife” under the headings “Popular Links”, “Popular Categories” and “Related Links” and various links related to the Complainant’s field of interest, including links entitled “Diet” and “Weight Loss”. By clicking on the links entitled “Herbalife”, the user was taken to a page with sponsored links and unpaid links, which in turn resolved to third party websites, some of which offered products that directly compete with the Complainant’s HERBALIFE products. The HERBALIFE trademark was once again prominently displayed at the top of this page of links, as well as on the right side under the heading “Popular Links”. Finally, the domain name in dispute also generated a pop-up window where various links were displayed, including links entitled “Herbalife”, “Herbalife Distributor”, “Herbalife Product” and “Herbalife Weight Loss”, and a number of these links ultimately resolved to websites offering products that directly compete with the Complainant’s products.
The Complainant contends that the pointing of the domain name in dispute to such website falsely suggests that the Respondent is somehow affiliated with, or sponsored by, the Complainant, thereby further supporting a finding of no rights and further impairing any claim of legitimacy, and accordingly all the foregoing activities cannot be said to constitute bona fide use.
The Complainant contends that, by reason of its status
of previous distributor for Complainant, the Respondent had actual or constructive
knowledge of Complainant’s rights in the Trademarks at the time of registration
of the domain name in dispute and that this has been found to undermine a claim
of legitimacy. See Expedia,Inc. v. European Travel Network, WIPO
Case No. D2000-0137 and Document Technologies v. International Electronic
Communications, Inc., WIPO Case No. D2000-0270.
Such a prior relationship with the Complainant can also undermine a claim of
legitimacy. See Express Messenger Systems, Inc. v. Golden State Overnight,
WIPO Case No. D2001-0063.
According to the Complainant, the inactivity of a
domain name can reinforce a finding of no legitimate interest and the parking
of a domain name at an Internet portal, such as the one operated by Domain Sponsor.com,
constitutes no more than passive use or de facto inactivity for a period of
nearly three (3) years, under the current circumstances. See Advanced Comfort
Inc. v. Frank Grillo, WIPO Case No. D2002-0762.
Thirdly, the Complainant submits that the domain name
in dispute was registered and is being used in bad faith by the Respondent in
that it was used to intentionally attempt to attract, for commercial gain, Internet
users to a website by creating a likelihood of confusion with the Complainant’s
mark as to source, sponsorship, affiliation, or endorsement and that the Respondent’s
registration and use of the domain name in dispute constitutes prima facie
evidence of conduct falling squarely within paragraph 4(b)(iv) of the Policy,
as it has been held by numerous panels that directing a domain name containing
a third party trademark to a Domain Sponsor.com website can constitute bad faith
as per paragraph 4(b)(iv). See Bridgestone Corporation v. Horoshiy, Inc.,
WIPO Case No. D2004-0795, Lowen Corporation
d/b/a Lowen Sign Company v. Henry Chan, supra; Deloitte Touche Tohmatsu
v. Henry Chan, supra; PepsiCo, Inc. v. LaPorte Holdings, Inc. and
Pepsiemployment.com a/k/a Henry Chan, supra, Air Austral v. WWW Enterprise,
Inc., supra, and Ameriquest Mortgage Company v. Ling Shun Shing,
WIPO Case No. D2003-0294.
While the Respondent has alleged that his initial
intention behind registering the domain name in dispute was to post an online
HERBALIFE directory, yet according to the Complainant the domain name in dispute
has never pointed to such an online directory, and this is of no help to the
Respondent because for a finding to be made under paragraph 4(b)(iv), it is
not necessary that the impugned domain name be associated with an active website.
Panels have held that this bad faith requirement is met when a domain name,
if ever put to use, would ultimately result in consumer confusion (CBS Broadcasting,
Inc. v. LA-Twilight-Zone, WIPO Case No. D2000-0397
and SSL International PLC v. Mark Freeman, WIPO,Case
The Complainant submits that if the domain name in
dispute were ever associated with the proposed online HERBALIFE directory, the
Respondent’s activities would fall within the application of paragraph
4(b)(iv) of the Policy, given that the impugned domain name is confusing with
the HERBALIFE Trademarks, and is disrupting the business of the Complainant,
whether one uses the narrow or broad interpretation of “disrupting the
business of a competitor”. The narrow interpretation holds that a Respondent
disrupts the business of a competitor if it offers goods or services that competes
with, or rival, the goods or services offered by the trademark owner. See Tribeca
Film Center, Inc. v. Lorenzo Brusasco-Mackenzie, WIPO
Case No. D2000-1772.
A broader interpretation has also been accepted, namely,
that a competitor is someone who acts in opposition to another, including competing
for Internet users, and that there is no requirement that the Respondent be
a commercial business competitor or someone that sells competing products. See
Mission KwaSizabantu v. Benjamin Rost, WIPO
Case No. D2000-0279, EstйeLauderInc. v. estelauder. com, estelauder.
net and Jeff Hanna, WIPO Case No. D2000-0869.
The panel held that the fact that the terms of paragraph 4(b)(iii) of the Policy
do not require that a party be motivated by “commercial gain”, further
supports the fact that the competition referred to need not be commercial in
nature. Respondent is, moreover, clearly competing with Complainant for the
attention of Internet users, which it hopes to divert to its sites.
In this case, the Complainant submits that the Respondent’s activities fall within the scope of paragraph 4(b)(iii) of the Policy. The Respondent is someone who acts in opposition to the Complainant, such as competing for Internet users by capitalizing on the likelihood that the domain name in dispute will be confused as being affiliated with, or endorsed by, the Complainant and also disrupting the business of the Complainant as his website offers links to goods that compete with, or rival, the goods offered by the Complainant.
The Complainant directs the Panel’s attention
to the surrounding circumstances, which further support a finding of bad faith
such as the knowledge of the Complainant’s rights and prior relationship.
See Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO
Case No. D2000-0003, where the actual or constructive knowledge of a complainant’s
rights in a domain name at the time of registration has been found to reinforce
a finding of bad faith registration (Herbalife International, Inc. v. Herbalife.net,
supra; Document Technologies v. International Electronic Communications,
Inc., supra) and, in certain cases, where a respondent has had a relationship
with the complainant, knowledge of the complainant’s rights are assumed
(National Council of YoungMen ‘s Christian Associations of the United
States of America v. Duerr Business Solutions, NAF Claim No. FA0008000095417.
Finally, it is a well-established principle that the inactivity of a domain
name can support a claim of bad faith (Telstra Corp. v. Nuclear Marshmallows,
supra; Yahoo! Inc. v. CPIC NET and Syed Hussain, WIPO
Case No. D2001-0195.
The Respondent, in an uncertified response, contends that the Complainant “obtains the distributors through multi-level marketing with people attending meetings are exposed to good things promised, such as becoming your own boss and earning lots of money, but in reality while many distributors join the company and spend several hundred dollars, they later give up because it is very difficult to find people to join them in order to earn big money because there is a lack of support.”
According to the Respondent, after attending a few meetings and joining the company in 2001 and after a few months, he gave up on the business because he was unable to find people to join him in order to earn money. Observing that some friends and others continued to call him to attend meetings, at some point he had the idea to help other Herbalife distributors and himself to start a free directory where the general public can find out how to reach the distributors in order to buy products or get some information.
Since he allegedly did not get support from the Complainant, he decided to register the domain name to help himself, distributors and the company. He added the word “path” as to him it meant the way to success.
The Respondent acknowledges that after registering the domain name in dispute he did receive phone calls from the Complainant and he told the caller of his intention to start free directory services for all the distributors. He contends that the Complainant liked his idea and wanted the domain name in dispute transferred to it which the Respondent refused.
He put off his plans and parked the domain name.
The Respondent, observing that the domain name has already expired (July 25, 2005),
contends that he does not intend to obtain this name again. He nevertheless
reiterates that, while he may not have done everything properly due to the lack
of knowledge in his part, in his view he still did not register the domain name
in bad faith.
6. Discussion and Findings
A. Identical or Confusingly Similar
Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order for a domain name to be cancelled or transferred:
(i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and
(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Comments on the evidence
Prior to engaging into the discussion, the Panel considers appropriate to comment on the absence of certification of the Response by the Respondent.
The Complainant Herbalife has in its evidence clearly demonstrated that it has rights in the family of HERBALIFE Trademarks which are registered in the United States and in Canada and incorporate the Herbalife distinctive element. The Complainant has, furthermore, amply shown the extensive use, fame and recognition of the Trademarks in association with the about 130 products marketed, distributed and sold in 59 countries through an impressive network of independent distributors. The Trademark HERBALIFE has achieved exceptional reputation and fame as it has previously been held by a UDRP panel in 2002 and cited herein. See also the Xerox Corporation, RRI Financial, Inc., Quixtar Investments, Inc. decisions cited hereinabove in the representations and which this Panel adopts. Thus the Complainant has rights in the US and Canadian HERBALIFE Trademarks.
The domain name in dispute incorporates in its entirety the Herbalife distinctive element of the family of HERBALIFE Trademarks. There is no doubt that the domain name in dispute is confusingly similar to the HERBALIFE Trademarks for the purpose of the Policy. In the opinion of the Panel, the simple addition of the descriptive word “path” and of the suffix of “.com” does not deter the reader that the Herbalife distinctive element has been taken and associated with the said suffixes and this does not diminish in any way the fact that the domain name in dispute is confusingly similar to the HERBALIFE Trademarks.
This case is quite similar in the composition of the domain name as the one in the Chanel Inc. case cited hereinabove wherein a generic or non-distinctive term had been added to the trademark in the domain name.
The first criterion has been met.
B. Rights or Legitimate Interests
Respondent has filed a response in this proceeding but did not provide the required certification notwithstanding a Procedural Order permitting him to correct this deficiency. Therefore, the Panel may accept all reasonable inferences and allegations included in the Complaint as true. The Complainant has made a prima facie case that the Respondent lacks right or legitimate interest in the domain name in dispute by stating that the Respondent has never been known by the name “herbalifepath.com” or the domain name in dispute, and is not making a legitimate non-commercial or fair use of the domain name in dispute. Furthermore, the Complainant has never given a license nor in any way authorized the Respondent to make use of the Complainant’s Trademark. There is no evidence that the Respondent has ever engaged in any legitimate business under the Complainant’s Trademark.
While there was a contractual relationship between the Complainant and the Respondent from November 1, 1999 to November 25, 001, it is clear from the evidence adduced by the Complainant that such relationship did not provide the Respondent with any authorization to register or use the domain name in dispute. It is interesting to observe that the Respondent has never been known by the domain name or the trademark “Herbalifepath” and that the evidence clearly shows that the parking of the domain name at the website hosted by Domain Sponsor.com, was generating revenues in the form of referral fee on the one hand and the presence of various links such as “popular links”, “popular categories” and related links as displayed in Respondent’s website as recently as in February of 2005. The said links related to the Complainant’s field of interest and redirected the web user to a page with sponsored links and unpaid links which in term result to third party websites, some of which offered products that directly compete with the Complainant’s Herbalife Products.
It is appropriate to recall here that the Respondent has never used or demonstrated preparations to use the domain name in dispute in connection with a bona fide offering of goods and services. The Complainant has referred this Panel to decisions holding that the point in the domain name to a Domain Sponsor.com website does not constitute bona fide use. While there is no evidence adduced by the Complainant that the Trademark HERBALIFE is registered in Canada, the Panel found such registration. The evidence is clear that the Respondent had actual or constructive knowledge of the Complainant’s rights in the Trademarks at the time he registered the domain name in dispute and this fact, alone, has been found to undermine a claim of legitimacy, as it appears from the cases cited in this respect by the Complainant.
Finally, the parking of the domain name in dispute for so many years at Domain Sponsor.com constitutes no more than passive use or de facto activity, which activity can reinforce a finding of no legitimate interest.
The Panel finds that the use of the domain name in dispute by the Respondent is illegitimate and does not constitute a bona fide offering of goods and services.
The second criterion has been met.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location.”
It should be noted that the circumstances of bad faith are not limited to the above.
The Complainant contends that the domain name in dispute was registered and used in bad faith. Notwithstanding the contention of the Respondent that he wanted to set up a Herbalife distributor directory and in his understanding he was not acting in bad faith, the facts of this case as understood and considered with appropriate support found in earlier UDRP panel decisions cited by the Complainant, this Panel is of the view that the domain name in dispute was registered in bad faith and was subsequently used in bad faith.
The domain name in dispute which does contain the HERBALIFE Trademarks and directs Internet users to a Domain Sponsor.com website can constitute bad faith as held in the Bridgestone Corporation, Lowen Corporation d/b/a Lowen Sign Company, Deloitte Touche Tohmatsu and Pepsiemployment.com and Austral cases cited by the Complainant herein. Furthermore, as held in the Ameriquest Mortgage Company case, the registration of a domain name with the knowledge of the complainant’s trademark registration amounts to bad faith. When knowledge has been alleged by the Complainant and not denied by the Respondent in his uncertified response, coupled with the fact that Respondent was a distributor of the Complainant, this constitutes use of the domain name in bad faith because, amongst other things, the use is to divert Internet traffic to websites such as Domain Sponsor.com for the direct or indirect commercial gains presumably of the Respondent’s, all of this done with a false association to the Complainant and his HERBALIFE Trademarks. Again, the Complainant has stated and argued in the Complaint that through the Domain Sponsor.com website, the Respondent was generating revenue, which fact was not challenged nor denied by the Respondent in his uncertified Response.
Furthermore, despite his alleged goal to post an online Herbalife directory at the domain name in dispute, the said domain name has never pointed to such an online directory and yet, as held in CBS Broadcasting and SSL International PLC decisions, the bad faith requirement is met by the domain name in dispute in that, if ever put to use, it would ultimately result in consumer confusion as this Panel has found.
In such circumstances, it is not difficult for this Panel to find, either under broad or narrow interpretation of “disrupting the business of a competitor”, that the parkingby the Respondent of his domain name at Domain Sponsor.com where the visitors are diverted to sites ultimately offering products or services in competition with those of the Complainant, constitutes use of the domain name in bad faith.
Finally, surrounding circumstances which are also present in this case such as the knowledge of the Complainant’s rights and prior relationship, corroborate this finding of use in bad faith if not enhancing it, as held in the Telstra Corporation Limited, Herbalife International, Inc. and Document Technologies decisions cited by the Complainant.
This Panel finds that notwithstanding Respondent’s denial, the evidence and the facts of this case have demonstrated to this Panel that the domain name in dispute was registered and is used in bad faith by the Respondent. In so deciding, the Panel acknowledges and adopts the finding and support of the UDRP decisions referred to by the Complainant.
This Panel finds that the Respondent registered and used the domain name in dispute in bad faith.
The third criterion has been met.
The Panel concludes that:
(a) the domain name <herbalifepath.com> is confusingly similar to the Complainant’s Trademarks;
(b) the Respondent has no rights or legitimate interests in the domain name in dispute;
(c) the domain name in dispute has been registered and is being used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <herbalifepath.com> be transferred to the Complainant.
J. Nelson Landry
Jacques A. Lйger
Dated: October 3, 2005