Generic Top Level Domain Name (gTLD) Decisions

Complainant is Robert Chinery, Cytodyne Technologies, Inc., Lakewood, NJ, USA ("Complainant") represented by Lawrence D. Mandel, of Mandel & Peslak, LLC. Respondent is Troy Coney, INetSources, Garland, TX, USA ("Respondent").

The domain names at issue are <cytodine.com> and <cytodyne-technologies.com> registered with Network Solutions, Inc.

The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a Panelist in this proceeding.

Judge Ralph Yachnin, as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 23, 2001; the Forum received a hard copy of the Complaint on March 26, 2001.

On March 27, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain names <cytodine.com> and <cytodyne-technologies.com> are registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 4.0 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 March 27, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 16, 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@cytodine.com and postmaster@cytodyne-technologies.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.

On April 24, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin, as Panelist.

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 Respondent.

Complainant requests that the domain names be transferred from Respondent to Complainant.

A. Complainant

B. Respondent

Respondent did not submit a Response to this proceeding.

Complainant is a company that was founded in 1997 to develop and market nutritional supplements in the field of weight loss and bodybuilding. It has been quite successful in doing so, especially in connection with a particular product called XENADRINE. This has bred a large amount of counterfeiting, as well as trademark and copyright infringement. Complainant has sought to protect its valuable trademark rights by registering them with the U.S. Patent and Trademark Office. In particular, Complainant has registered the mark CYTODYNE and its corporate name and logo CYTODYNE TECHNOLOGIES.

Clicking on the domain names <cytodine.com> and <cytodyne-technologies.com> brings one to Respondent’s web site where Respondent is offering for sale the domain name <cytodine.com> for $5,000 and <cytodyne-technologies.com> for $2,000. The web site also includes links to web sites which belong to Pinnacle Performance Fitness & Nutrition, which is in the business of selling nutritional supplements and has the same post office address as Respondent.

In response to a letter demanding transfer to Complainant of these domain names, Respondent replied: "The domain names are not in use. Therefore, I am not infringing on anything! If [you] would like to PURCHASE the domain names, that can be arranged."

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.

Respondent has registered the domain names <cytodine.com> that is the registered mark CYTODYNE with the second letter "Y" changed to an "I" and <cytodyne-technologies.com> which is the registered mark CYTODYNE TECHNOLOGIES with a hyphen added. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that the domain names, <davemathewsband.com> and <davemattewsband.com>, are common misspellings and therefore confusingly similar); see also Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding "that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark").

Therefore, the Panel finds the domain names <cytodine.com> and <cytodyne-technologies.com> are at the very least confusingly similar if not identical to Complainant’s trademarks.

Respondent is using the domain names as a portal to a web site that offers the domain names for sale and includes a link to another of its own web sites that offer services in competition with Complainant. Such use of confusingly similar domain names is not a legitimate or fair use. See Skipton Bldg. Soc’y v. Colman, D2000-1217 (WIPO Dec. 1, 2000) (finding no rights in a domain name where Respondent offered the infringing domain name for sale and the evidence suggests that anyone approaching this domain name through the world wide web would be "misleadingly" diverted to other sites).

Respondent’s attempted sale of the domain name was not a bona fide offering of goods or services. See J. Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum Sept. 7, 2000) (finding rights or legitimate interests do not exist when one has made no use of the web sites that are located at the domain names at issue, other than to sell the domain names for profit).

Additionally, Respondent is not commonly known by either domain name. See Broadcom Corp. v Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).

Therefore, the Panel determines that Complainant has established the burden set forth under Policy 4(a)(ii).

Respondent showed bad faith use and registration by attempting to sell the domain names for an amount in excess of out of pocket costs. See Dollar Rent A Car Systems Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that the Respondent demonstrates bad faith by registering the domain name for the purpose of transferring the domain name in the amount of $3,000, an amount in excess of out of pocket costs).

Respondent also demonstrated bad faith by attempting to cause consumer confusion by linking a web site that offered goods and services competing with Complainant at the disputed domain names. See John C. Nordt Co., Inc. v. Jewelry Exchange, FA 96789 (Nat. Arb. Forum Apr. 11, 2001) (finding that Respondent exhibited bad faith when Respondent, a competitor of Complainant, attempted to sell a domain name, which was identical to Complainant’s MOTHER’S RING mark, to the Complainant for a profit); see also Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to web site that competes with Complainant’s business).

Therefore, the Panel concludes that the elements of Policy 4(a)(iii) have been satisfied.

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain names <cytodine.com> and <cytodyne-technologies.com> be transferred from Respondent to Complainant.