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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Mead Johnson & Company v. Chris Carter

Case No. D2007-0572

 

1. The Parties

Complainant is Mead Johnson & Company, a division of Bristol-Myers Squibb Company, New York, United States of America, represented by Quinn Emanuel Urquhart Oliver & Hedges, LLP, United States of America.

Respondent is Chris Carter, Orem, Utah, United States of America.

2. The Domain Name and Registrar

The disputed domain name <pregestimil.com> (the “Domain Name”) is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2007. On April 17, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name at issue. On April 18, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on April 20, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2007.

The Center appointed Michelle Brownlee as the sole panelist in this matter on May 24, 2007. The Panel finds that it was properly constituted. 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.

 

4. Factual Background

Complainant owns United States Trademark Registration No. 925,600 for the mark PREGESTIMIL for “dietary formula for infants and children.” The registration claims a first use in commerce of May 12, 1970. Complainant also owns numerous registrations of the PREGESTIMIL mark in many other countries throughout the world.

 

5. Parties’ Contentions

A. Complainant

Complainant states that it has continuously owned and used the PREGESTIMIL trademark in the United States in connection with dietary formula for infants and children since at least as early as 1970. Complainant has also registered and used the mark in a number of other countries. Complainant states that the mark is well-known due to Complainant’s extensive and exclusive use of the mark and Complainant’s investment of significant resources in advertising products under the mark.

Respondent is using the Domain Name for a web site that provides links to web sites that provide products for sale, presumably to earn referral fees for click-throughs from Respondent’s web site. Complainant contends that Respondent has no rights or legitimate interest in the Domain Name and that it has registered and is using the Domain Name in bad faith.

B. Respondent

Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:

(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2) the 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.

A. Identical or Confusingly Similar

The Domain Name is identical to Complainant’s registered trademark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:

(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name; or

(iii)) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.

Complainant has established a prima facie case of Respondent’s lack of rights or legitimate interests to the domain name.

Respondent has not rebutted Complainant’s contentions or provided any evidence of rights or legitimate interest in the Domain Name. Respondent does not appear to be known by “Pregestimil” and his use of the Domain Name to provide links to retail web sites (a practice that is typically engaged in to collect click-through referral fees) cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use. See PRL USA Holdings, Inc. v. LucasCobb, WIPO Case No. D2006-0162. Based on the case file, the Panel finds that Respondent does not have any right or legitimate interest in the Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or 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 that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent 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 the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.

Complainant has established bad faith under Paragraph 4(b)(iv) of the Policy. Respondent’s use of the Domain Name to earn referral fees by linking to other web sites attracts Internet users to Respondent’s site by creating confusion as to source and results in commercial gain to Respondent. Accordingly, the Panel finds that the Domain Name was registered and used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <pregestimil.com> be transferred to the Complainant.

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Michelle Brownlee
Sole Panelist

Date: June 7, 2007