Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Natural Organics, Inc., Melville, NY, USA ("Complainant"). The Respondent is Kinakin International Holdings Inc., Langley, BC, Canada ("Respondent").

The domain name at issue is "SPIRU-TEIN.COM", registered with Network Solutions Inc ("NSI").

Honorable Carolyn Marks Johnson as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/12/2000; The Forum received a hard copy of the Complaint on 06/13/2000.

On 06/13/2000, NSI confirmed by e-mail to The Forum that the domain name "SPIRU-TEIN.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.

On 06/14/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/05/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email.

On 07/05/2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On 07/07/2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed Honorable Carolyn Marks Johnson as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, The Forum’s Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

The Complainant contends that the Respondent has registered a domain name that is confusingly similar to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name and is using the domain name in bad faith.

The Respondent failed to submit a response in this matter and, accordingly, all reasonable inferences of fact in the Complaint will be deemed to be true.

The Complainant manufactures, distributes, advertises, promotes and sells dietary food supplements in the United States and worldwide. One of the Complainant’s most successful product lines is called SPRIU-TEIN. The Complainant owns the U.S. trademark SPIRU-TEIN (registered 08/26/1986; 1,406,439) for use in dietary supplements. The Complainant sells it products on the Internet at <naturesplus.com>.

The Respondent registered the domain name "SPIRU-TEIN.COM" on 06/16/1998. The Complainant suggests that the Respondent is involved with a company named Sun Force International Products Inc., which sells a dietary supplement called RespirActin. In a telephone conversation with the Complainant’s attorney, the Respondent asked if the Complainant would be interested in a "private labeling deal" or "distribution agreement."

In August 1998, the Complainant sent the Respondent a letter asserting rights to the domain name and demanding transfer. The Respondent never responded. The Complainant then attempted to have the domain name put on "hold" through NSI. The Respondent contacted the Complainant and offered $5,000 for the domain name. The Respondent stated that he had no intention of using the domain name. The Complainant refused to accept the offer. The Respondent then agreed to transfer the domain name for $300; however, the Respondent never processed the appropriate paperwork and the oral agreement folded. When the Complainant demanded that the paperwork be processed, the Respondent increased his offer to $3,000.

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") requires that the complainant must prove each of the following three elements to support a claim that a domain name should be cancelled or transferred:

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

(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.

The Complainant has rights in the mark SPIRU-TEIN. The domain name in question is identical to the Complainant’s registered mark. Policy ¶ 4(a)(i). See Nabisco v. Patron, D2000-0032 (WIPO Feb 23, 2000) (finding that the Respondent’s domain names, <wheatthins.com>, <bettercheddars.com>, <milk-bone.com>, etc., were identical to the Complainant’s marks).

The Complainant asserts that the Respondent has no rights or legitimate interests in the domain name in question. The Respondent does not assert any rights or legitimate interests to the domain name in question.

The domain name is not a term by which the Respondent is commonly known. Policy ¶ (c)(ii). The Complainant has been involved with manufacturing and selling spiru-tein for the past 15 years. Rather, based on the evidence, the panel believes that the Respondent is a competitor of the Complainant.

The Respondent has made no use of the domain name in question since registering the name almost 2 years ago. See Mondich and Amer. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that failure to develop a site in a two year period raises the inference that the respondent has no bona fide intent to use the name). The Respondent has not used the domain name in connection with any bona fide offering of goods or services and has not used the name in a legitimate noncommercial or fair manner. Policy ¶ 4(c)(i), (iii). This is shown through the Respondent’s statements to the Complainant, admitting that he had no intention of using the domain name.

The panel concludes that the Respondent has no rights or legitimate interest in the domain name in question.

The Complainant asserts that the Respondent acted and is acting in bad faith. The Respondent does not deny that its actions were taken in bad faith.

The Respondent registered the domain name to prevent the Complainant from using its mark in the corresponding domain name. Policy ¶ 4(b)(ii). The Respondent is a competitor of the Complainant and knew or should have known of the Complainant’s products and rights to its registered marks. See Deutsche Bank AG v. Diego-Arturo Bruckner, D2000-0277 (WIPO May 30, 2000) (finding that Respondent knew or should have known of Complainant’s mark at the time of registration). This reveals the Respondent’s purpose of registering the domain name primarily to disrupt the business of the Complainant. Policy ¶ 4(b)(iii). This is evidence of bad faith.

The Respondent also registered and used the domain name in bad faith by offering it for sale to the Complainant at a price in excess of out of pocket costs. Policy ¶ 4(b)(i).

It is the panel’s view that the Respondent registered and used the domain name in bad faith.

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "SPIRU-TEIN.COM" be transferred from the Respondent to the Complainant.

Honorable Carolyn Marks Johnson

Dated: 07/18/2000