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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Nutraquest Inc. v. Azeras LLC

Case No. D2008-0451

 

1. The Parties

The Complainant is Nutraquest, Inc., Manasquan, New Jersey United States of America, represented by Gibbons PC, United States of America.

The Respondent is Azeras LL., Charlestown, Saint Kitts and Nevis.

 

2. The Domain Name and Registrar

The disputed domain name <cytodyne.net> is registered with Fabulous.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2008. On March 25, 2008, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On March 26, 2008, Fabulous.com 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 the Respondent of the Complaint, and the proceedings commenced on March 31, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 23, 2008.

The Center appointed David Taylor as the sole panelist in this matter on May 13, 2008. 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

The Complainant was founded in 1997 and formerly known as Cytodyne Technologies, Inc. The Complainant is in the business of developing and marketing sports nutrition and dietary supplement products in the United States of America and abroad.

In 1997, the Complainant launched CYTODYNE, a nutritional supplement designed to provide bodybuilders and athletes with muscle support and recovery. The Complainant owns several trade marks consisting of the word “cytodyne” including the following registrations:

- CYTODYNE (Registration number 2,266,294), registered on August 3, 1999 with the United States Patent and Trademark Office;

- CYTODYNE TECHNOLOGIES (Registration number 2,332,865), registered on March 21, 2000 with the United States Patent and Trademark Office;

The domain name <cytodyne.net> was registered on December 7, 2006 and is currently registered to the Respondent.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical and confusingly similar to the CYTODYNE marks in which the Complainant has rights.

The Complainant asserts that the distinctive portion of the disputed domain name is identical to its CYTODYNE marks.

The Complainant further states that consumers are likely to believe that the disputed domain name is associated, affiliated with or sponsored by the Complainant. This argument is bolstered by the fact that the Complainant has conducted substantial business under the CYTODYNE marks.

The Complainant also contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

According to the Complainant, the Respondent is not licensed to use the CYTODYNE marks and is knowingly infringing the Complainant’s trade mark rights. Furthermore, the Complainant submits that the Respondent cannot establish that it falls within any of the categories set out under paragraph 4(c) of the Policy.

The Complainant asserts that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(b) of the Policy.

The Complainant contends that the Respondent is a known “domain name warehouser” and has registered over 5,000 domain names with a view to reselling them for a profit. According to the Complainant, some of the domain names registered by the Respondent correspond to trade marks owned by third parties. This would indicate that the Respondent merely sought to benefit from the goodwill associated with those trade marks.

According to the Complainant, the Respondent registered the disputed domain name with full knowledge of the Complainant’s prior use and rights. The Respondent is allegedly using the domain name to attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks, as referred to at paragraph 4(b)(iv) of the Policy.

The Complainant therefore seeks the transfer of <cytodyne.net> from the Respondent in accordance with paragraph 4(i) of the Policy and any further relief as the Panel deems appropriate.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules states that a panel shall decide a complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

In the case of default by a party, paragraph 14 of the Rules states that, if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under, the Rules, the Panel shall draw such inferences therefrom as it deems appropriate. In this case, Respondent has not submitted any Response and consequently, despite the opportunity given, has not contested any of the contentions by the Complainant. The Panel will therefore proceed on the basis of the factual statements contained in the Complaint and the documents available to support the contentions.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) the domain name registered by Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Taking each of these issues in turn, the Panel decides as follows:

A. Identical or Confusingly Similar

Based on the evidence produced by the Complainant, the Panel finds that the Complainant has rights in the CYTODYNE mark.

Numerous UDRP decisions have established that the addition of a top-level domain such as “.net” suffix can be ignored when assessing the issue of similarity.

The Panel therefore finds that the disputed domain name is identical to the CYTODYNE marks in which the Complainant has rights.

B. Rights or Legitimate Interests

The second element the Complainant must establish is that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(a)(ii) of the Policy.

Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate its rights or legitimate interests in a domain name, as follows:

“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The Panel has considered the evidence put forward by the Complainant and considers that the Complainant has presented prima facie evidence of the Respondent’s lack of rights or legitimate interest in the disputed domain name. As a result of its default, the Respondent has failed to rebut that evidence.

The Panel cannot conceive that the Respondent created the website attached to the disputed domain name for any reason other than deriving advertising revenue based on the goodwill and reputation of the CYTODYNE trade marks. The Panel considers that such use does not qualify as a bona fide offering of goods or services or as a legitimate non-commercial or fair use of the domain name within the meaning of paragraph 4(c)(i) and (iii) of the Policy.

The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The third element that the Complainant must prove is that the disputed domain name has been registered and is being used in bad faith in the sense of paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith, as follows:

“For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a 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 that 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.”

The Complainant claims that the Respondent is a known “domain name warehouser” and has registered over 5,000 domain names for the purpose of reselling them for a profit. The Complainant has submitted evidence of three domain names (<colehannshoes.com>, <columbiahouse.net>, <orbiutz.com>) registered by the Respondent, which appear to correspond to third parties’ trade marks. The Panel observes that the websites linked to these domain names are parking websites. The Panel finds that this would suggest that the Respondent has engaged in a pattern of bad faith registrations as specified in paragraph 4(b)(ii) of the Policy.

In addition the Panel finds it likely that the Respondent had knowledge of the Complainant’s business and trade mark rights when it registered the disputed domain name. The word “cytodyne” is clearly distinctive and the website associated with the domain name contains links to Xenadrine and Xenadrine Efx products. These products are produced by the Complainant and the Complainant owns trade mark registrations for these products. The website also links to similar products, such as Xenical, which is produced by a competitor of the Complainant.

Based on the evidence submitted, the Panel finds it likely that the Respondent registered the disputed domain name with a view to generating gain as a consequence of consumers visiting the website under “www.cytodyne.net”. There is no evidence to contradict this inference and the Respondent’s conduct appears to be a classic example of cybersquatting.

In light of the above the Panel finds that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website in the sense of paragraph 4(b)(iv) of the Policy.

The Panel therefore finds that the Complainant has established that the disputed domain name has been registered and is being 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 <cytodyne.net> be transferred to the Complainant.


David Taylor
Sole Panelist

Dated: May 27, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0451.html

 

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