Generic Top Level Domain Name (gTLD) Decisions

P. O. Box 50191
Minneapolis, Minnesota 55405 USA
www.arbitration-forum.com

Labrada Bodybuilding Nutrition, Inc.

COMPLAINANT,

vs.

Bob Garrett, et al.

RESPONDENT.

DECISION
Forum File No.: FA0003000094293

The above entitled matter came on for an administrative hearing on March 27, 2000 before the undersigned on the Complaint of Labrada Bodybuilding Nutrition, Inc., hereafter "Complainant", against Bob Garrett, et al., hereafter "Respondent". Complainant was represented by James G. Minsteri, Esq., 1000 Louisiana, Suite 3400, Houston, TX 77002. Respondent was represented by Renuka V. Jain, Esq., 440 Louisiana, Suite 1580, Houston, TX 77002. Respondent appeared Pro Se. Upon the written submitted record, the following DECISION is made:

PROCEDURAL FINDINGS

The domain names at issue in this proceeding are:

Domain Name Registrant: Bob Garrett, Sales and Lease, Private Fitness, Inc.

Date Complaint Filed: March 9, 2000

Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a) and Rule 4(c): March 10, 2000

Due date for a Response: April 3, 2000. Respondent submitted a Response to the Complaint.

After reviewing the Complaint, and determining it to be in administrative compliance, the National Arbitration Forum (The Forum) forwarded the Complaint to the Respondent on March 10, 2000, in compliance with Rule 2(a), and the administrative proceeding was commenced pursuant to Rule 4(c). In compliance with Rule 4(d), The Forum immediately notified the above-referenced Registrars, the Internet Corporation for Assigned Names and Numbers (ICANN), and the Complainant that the administrative proceeding had commenced. Respondent submitted a response to The Forum pursuant to Rule 5(a).

On the above-referenced dates, Respondent registered the above-mentioned domain names with the entities which were the Registrars of the domain names. The Registrars have verified that Respondent is the Registrant for the domain names, and that further by registering domain names with the Registrars referenced, the Respondent agreed to resolve any dispute regarding its domain name through ICANN's Rules for Uniform Domain Name Dispute Resolution Policy, and the Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT

1. Complainant is the owner of trademarks, service marks and trade names set forth here:

Lee Labrada, Labrada Bodybuilding Nutrition, Inc., Labrada Nutritional Systems, Inc., Labrada Nutrition, Inc., LABRADA™, THE LABRADA ONLINE STORE, LABRADA APPAREL, LABRADA WEARABLES, LABRADA PRODUCTS, LEAN BODY^®, LEAN BODY^® RECIPES, LEAN BODY^® SAMPLER, LEAN BODY^® BAR SAMPLER, LEAN BODY^® Meal Replacement Powders, LEAN BODY^® For Her Instant Toning Nutrition, LEAN BODY^® Award-Winning Bars, CREATINE COOLER^®, KWIK SIZE XXXL™, KWIK SIZE XXXL™ Hi-Calorie Low-Sugar Weight Gainer.

For years prior to Respondent’s registration, Complainant used these marks and trade names in its nationwide business. The use of these names and marks is a significant method of promoting Complainant’s products.

2. The above-referenced marks and names have been used continuously and extensively in interstate and international commerce in connection with the advertising and sale of Complainant’s products.

3. Complainant has invested substantial sums of money in developing and marketing its products and services with its trademark and service marks and trade names affixed. They have been in continuous use by Complainant.

4. That Respondent registered the above-referenced domain names in bad faith and has no rights or legitimate interests in respect to the domain name, marks or trade names. The following is evidence of Respondent's bad faith:

(a) The referenced domain names were registered six months after the termination of Respondent’s distributor agreement with Labrada Bodybuilding Nutrition, Inc. In that agreement, Respondent agreed to cease to use of Complainant’s "corporate name and/or any trademark, or any near resemblance of same which would infringe upon or dilute the names and/or trademarks of the other party, or that in the opinion of the other party bare such near resemblance to an (sic) name and/or trademark of the other party as might deceive customers or create confusion." It is apparent from Respondent’s reply materials that he, in fact, has intentionally adopted contractually and statutorily protected trade names, marks, and identities as referenced above.

(b) Respondent has made no legitimate use of the domain names above-referenced, and he seeks to profit from the registration of those domain names by either diverting Complainant’s customers from Complainant, and/or selling the referenced domain names to others for a profit. Respondent’s profit motive is evidenced his use of greatdomains.com to advertise for sale said domain names.

(c) The domain names are identical or confusingly similar to a trademark or service marks in which the Complainant has rights.

(d) Additional evidence of bad faith is contained in Respondent’s arguments opposing Complainant’s relief in which Respondent posits a notion that he registered the "leelabrada.com" domain name for access to a vanity website without Mr. Labrada’s express or implied permission in violation of the Anti-Cybersquatting Act recently passed into law by the U.S. Congress.

5. Complainant's prayer for relief requests that the referenced domain names be transferred from Respondent to Complainant.

CONCLUSIONS

The undersigned certifies that he has acted independently and has no known conflict of interest to serve as the Arbitrator in this proceeding. Having been duly selected, and being impartial, the undersigned makes the following findings and conclusions:

1. The referenced domain names are identical and/or confusingly similar to Complainant’s trade names, trademarks, service marks, and personal name in which Complainant has rights and to which Respondent has no right or legitimate interests.

2. Respondent registered and acquired the referenced domain names for the purpose of selling or otherwise transferring the domain name registrations to competitors of the Complainant, for valuable consideration in excess of Respondent's out-of-pocket costs directly related to the domain name.

3. Given the "blanket" registration of the referenced domain names, Respondent seeks to divert Complainant’s business to himself by use of those names as portals to websites. Respondent registered the domain names in bad faith.

DECISION

Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE REFERENCED DOMAIN NAMES REGISTERED BY RESPONDENT BOB GARRETT AND/OR SALES AND LEASE, PRIVATE FITNESS, INC. BE TRANSFERRED TO COMPLAINANT LABRADA BODYBUILDING NUTRITION, INC.

Dated: April 27, 2000, by John A. Bender, Arbitrator.

Honorable John A. Bender