Generic Top Level Domain Name (gTLD) Decisions

Complainant is Natural Balance, Inc., Castle Rock, CO, USA ("Complainant") represented by Scott D. Kumpf, of Natural Balance, Inc.. Respondent is John McAfee, Woodland Park, CO, USA ("Respondent").

The domain name at issue is <dietpep.com> registered with Network Solutions, Inc.

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.

John J. Upchurch as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 19, 2001; the Forum received a hard copy of the Complaint on March 23, 2001.

On March 23, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <dietpep.com> is 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 23, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 12, 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@dietpep.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 17, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 name be transferred from the Respondent to the Complainant.

A. Complainant

Respondent’s <dietpep.com> domain name is identical to Complainant’s federally registered trademarks.

Respondent has no rights or legitimate interests in the <dietpep.com> domain name.

Respondent registered and used the <dietpep.com> domain name in bad faith.

B. Respondent

No response was received.

Since 1990, Complainant has used and licensed its DIET PEP registered mark in connection with vitamins and nutritional supplements. Complainant has currently licensed the DIET PEP trademark and service mark to be used in connection with its registered purpose. Complainant has obtained registrations in its DIET PEP service mark and word mark on the Principal Register of the United States Patent and Trademark Office as Registration Nos. 1,728,847 and 2,344,543 respectively. Complainant has been in continuous use of the DIET PEP service mark since its registration on November 3, 1992, and its DIET PEP word mark since April 25, 2000.

Respondent registered the <dietpep.com> domain name on February 22, 1999.

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.

Complainant has established that it has rights in the DIET PEP mark. The Panel finds that the <dietpep.com> domain name is identical to Complainant’s DIET PEP federally registered marks. See Football Ass’n Ltd. v. UKIP, D2000-1359 (WIPO Dec. 15, 2000) (finding that domain name "facup.com" is clearly identical to the FA CUP trademark belonging to Complainant).

Respondent failed to come forward to demonstrate any rights or legitimate interests in the <dietpep.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that "In the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise).

Respondent’s registration and passive holding of <dietpep.com> fails to show any use in connection with a bona fide offering of goods or services pursuant to Policy 4(c)(i). See American Home Prod. Corp. v. Malgioglio, D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in the domain name <solgarvitamins.com> where Respondent merely passively held the domain name); see also Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) ("…merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy").

Furthermore, Respondent is not commonly known by the domain name in dispute, as stated in Policy 4(c)(ii). See Victoria’s Secret et al v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well established use of the mark).

There is no evidence which demonstrates that Respondent is making a legitimate noncommercial or fair use of the domain name, as stated in Policy 4(c)(iii). See Chanel, Inc. v. Uraina Heyward, D2000-1802 (WIPO Feb. 23, 2001) (finding no rights or legitimate interests where "Respondent registered the domain name and did nothing with it").

The Panel therefore concludes that the Respondent does not have any rights or legitimate interests in the <dietpep.com> domain name.

Complainant alleges that Respondent has registered many domain names for the purpose of preventing the owners of the marks from reflecting the marks in a corresponding domain name and/or profiting from the sale of such domain names. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that "[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint"). A pattern of such conduct is violative of the Policy 4(b)(ii), and evidences bad faith on the part of the Respondent. See Pep Boys Manny, Moe, and Jack v. E-Commerce Today, Ltd., AF-0145 (eResolution May 3, 2000) (finding that where the Respondent registered many domain names, held them hostage, and prevented the owners from using them constituted bad faith).

The passive holding of the domain name in dispute, by Respondent, is further evidence of bad faith under Policy 4(b). See EMKA-Inc. v. E.K.M.A. Inc., FA 95133 (Nat. Arb. Forum Aug. 10, 2000) (stating that passive holding of a domain name is evidence of registration and use in bad faith).

Respondent’s registration of the <dietpep.com> domain name is evidence of bad faith under Policy 4(b)(ii).

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be granted.

Accordingly, it is Ordered that the <dietpep.com> domain name be transferred from Respondent to Complainant.