Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Reliv' International Inc., Chesterfield, MO, USA ("Complainant") represented by Scott P. Slykas, of Merrick & Klimek. The Respondent is Larry Kelly, Toronoto, ON, USA ("Respondent").

The domain name at issue is "relivlawsuits.com" registered with Tucows.

On January 30, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed James P. Buchele as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 22, 2000; the Forum received a hard copy of the Complaint on December 27, 2000.

On Jan 03, 2001, Tucows confirmed by e-mail to the Forum that the domain name "relivlawsuits.com" is registered with Tucows and that the Respondent is the current registrant of the name. Tucows has verified that Respondent is bound by the Tucows registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On January 4, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 24, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@relivlawsuits.com by e-mail.

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.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "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.

A. Complainant alleges the following:

Complaint has rights in the trademark and trade name RELIV. Complainant also has rights in a series of trademarks that specifically include the name Reliv, e.g., Reliv Now, Reliv Ultrim, Reliv Classic, Reliv Ultra Bar. The domain name relivlawsuits.com is confusingly similar to the Complainant’s trademark RELIV.

Respondent has no rights or legitimate interests in respect of the domain name that is the subject of this Complaint. Respondent’s use of the domain name is not in connection with a bona fide offering of goods or services. Respondent, as an individual, has not been commonly known by the domain name.

The domain name should be considered as having been registered and used in bad faith. Respondent has registered the domain name primarily for the purpose of disrupting the business of Complainant. Respondent is a disgruntled ex-employee of a subsidiary of the Complainant, Reliv Canada Company. Respondent was terminated from his position with Reliv Canada Company in April 1998. Thereafter, Respondent filed a lawsuit in the Ontario Court (General Division) in Canada on April 27, 1998, alleging wrongful dismissal and breach of contract. The lawsuit was dismissed in September 2000, with prejudice.

On or about June 3, 2000, Respondent registered the domain name relivlawsuit.com. On or about June 25, 2000, Respondent used the domain name to create a website carrying false and defamatory statements concerning the Complainant and certain of its officers, directors, employees and independent distributors, for the purpose of retaliating against Complainant and the individuals associated.

The website was deactivated due to the defamatory content on or about June 30, 2000. On or about July 12, 2000, Respondent activated for a second time his previous website using the domain name relivlawsuits.com with a different Internet Service Provider. The content of the website was unchanged from its earlier version. On or about July 20, 2000, the website was deactivated again due to the defamatory content. Respondent activated for a third time his previous website using the domain name in dispute on or about September 15, 2000. The website was deactivated due to the defamatory content on or about October 26, 2000.

B. Respondent has not submitted a response to the Complaint.

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panel may infer, for the purposes of this decision, that the averments in the complaint are true. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order 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 domain name relivlawsuits.com is confusingly similar to the Complainant’s trademark RELIV, because it combines the Complainant’s trademark and generic word "lawsuits." See L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word "shop" with the Complainant’s registered mark "llbean" does not circumvent the Complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy); General Electric Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000) (finding that adding the generic term "direct" on to the Complainant’s marks (GE CAPTIAL and GECAL) does not alter the underlying mark held by the Complainant, and thus the Respondent’s domain names are confusingly similar).

Respondent’s use of the domain name to create a website carrying false and defamatory statements concerning the Complainant is not a legitimate noncommercial use, because it tarnished the Complainant’s trademark. Policy ¶ 4(c)(iii). Neither is it a bona fide offering of goods or services. Policy ¶ 4(c)(i). See Kosmea Pty Ltd. v. Carmel Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where the Respondent has an intention to divert consumers of the Complainant’s products to the Respondent’s site by using the Complainant’s mark).

Moreover, Respondent is not commonly known by the domain name. Policy ¶ 4(c)(ii). See Compangie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark or never applied for a license or permission from the Complainant to use the trademarked name).

The fact that Respondent used the domain name to criticize the Complainant proves his bad faith in registering and using the domain name. See Mission KwaSizabantu v. Benjamin Rost, D2000-0279 (WIPO June 7, 2000) (finding that the Respondent registered the domain name in bad faith where Respondent published negative comments regarding the Complainant’s organization on a confusingly similar website); Household Int’l, Inc. v. Cyntom Enterprises, FA 95784 (Nat. Arb. Forum Nov. 7, 2000) ("Just as the employment of a well-known business name for no particularly good reason undermines any claim to legitimate interest, so it may also support an inference of a bad-faith attempt to use the name to harass or exploit its legitimate owner… Respondent, if he ever was serious in the registration of this domain name, must have relied on the good chance he would attract [Complainant’s] customers").

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, "relivlawsuits.com" be transferred from the Respondent to the Complainant.