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Generic Top Level Domain Name (gTLD) Decisions |
Wellness International Network, Ltd. V.
Leza Mesiah a/k/a wellnessopportunitiesgroup.com
Claim Number: FA0205000114303
PARTIES
Complainant
is Wellness International Network Ltd.,
Plano, TX (“Complainant”) represented by Dana
M. Campbell, of Owens, Clary &
Aiken, L.L.P. Respondent is Leza Mesiah a/k/a
wellnessopportunitiesgroup.com, Dallas, TX (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <wellnessinternationalnetwork.org>,
registered with Alldomains.com.
PANEL
The
undersigned certifies that he or she has acted independently and impartially
and to the best of his or her knowledge has no known
conflict in serving as
Panelist in this proceeding.
James
A. Crary as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on May 17, 2002; the Forum received
a hard copy of the Complaint
on May 17, 2002.
On
May 17, 2002, Alldomains.com confirmed by e-mail to the Forum that the domain
name <wellnessinternationalnetwork.org>
is registered with Alldomains.com and that Respondent is the current registrant
of the name. Alldomains.com has
verified that Respondent is bound by the Alldomains.com 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
May 21, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of June 10,
2002 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@wellnessinternationalnetwork.org 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
June 27, 2002, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed James
A. Crary 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.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
<wellnessinternationalnetwork.org> domain name is confusingly
similar to Complainant’s WELLNESS INTERTIONAL NETWORK, LTD. mark.
Respondent
has no rights or legitimate interests in the <wellnessinternationalnetwork.org>
domain name.
Respondent
registered and used the <wellnessinternationalnetwork.org> domain
name in bad faith.
B.
Respondent
Respondent
did not submit a Response.
FINDINGS
Complainant owns a registered trademark,
registered with the United States Patent and Trademark Office, for WELLNESS
INTERTIONAL NETWORK,
LTD. (Reg. No. 2,290,737). Complainant uses its WELLNESS INTERTIONAL NETWORK, LTD. mark in
association with printed matter, including business forms, product
brochures,
product catalogs and health, nutrition and personal education pamphlets. Complainant is in the business of selling
health and nutrition products.
Respondent registered the <wellnessinternationalnetwork.org>
domain name on March 2, 2001.
Respondent has failed to make an active use of the domain name. Following a request to transfer the domain
name to Complainant, Respondent notified Complainant that it may be bought “at
a PREMIUM
price.”
Complainant never authorized or licensed
Respondent to use its WELLNESS INTERTIONAL NETWORK, LTD. mark. Respondent, however, is an independent
distributor of Complainant, who sells nutritional products manufacturer and
distributed by
Complainant.
Nonetheless, Respondent’s distribution agreement with Complainant
expressly prohibits the use of Complainant’s mark.
DISCUSSION
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 and
draw such inferences it considers appropriate
pursuant to paragraph 14(b) 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; and
(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.
Identical and/or Confusingly Similar
Complainant has established its rights to
the WELLNESS INTERTIONAL NETWORK, LTD. mark through registration with the
United States
Patent and Trademark Office and subsequent continuous use.
Respondent incorporates Complainant’s
entire mark in its <wellnessinternationalnetwork.org> domain name
minus the mark’s “LTD” suffix.
Respondent’s domain name maintains the essence of Complainant’s mark
because the “LTD” suffix merely refers to Complainant’s business
status. Since Respondent’s domain name contains the
core of Complainant’s mark, consumers are likely to be confused and believe
they are doing
business with Complainant.
Thus, Respondent’s domain name is not distinguishable from Complainant’s
WELLNESS INTERTIONAL NETWORK, LTD. mark.
See Surface Protection
Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding the
domain name <mannbrothers.com> confusingly similar to Complainant’s MANN
BROTHERS
mark “so as to likely confuse Internet users who may believe they are
doing business with Complainant or with an entity whose services
are endorsed
by, sponsored by, or affiliated with Complainant; hence, satisfying the
confusing similarity requirement”).
Accordingly, the Panel finds that Policy
¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has established its rights in
the WELLNESS INTERTIONAL NETWORK, LTD. mark.
Because Respondent has not submitted a Response in this proceeding, the
Panel may presume Respondent has no such rights or interests
in the disputed
domain name. See Pavillion Agency, Inc. v. Greenhouse Agency
Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to
respond can be construed as an admission that they have no
legitimate interest
in the domain names). Furthermore, when
Respondent fails to submit a Response, the Panel is permitted to make all
inferences in favor of Complainant. See
Vertical Solutions Mgmt., Inc. v.
Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure
to respond allows all reasonable inferences of fact in the allegations of
Complainant
to be deemed true).
Respondent has made no active use of the <wellnessinternationalnetwork.org>
domain name. Respondent, however, has
offered to sell it to Complainant “at a PREMIUM price.” Respondent’s lack of active use and
affirmative offer to sell the domain name to Complainant does not constitute a
bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i), nor does
it establish rights and legitimate interests in the domain name pursuant
to
Policy ¶ 4(c)(iii). See Pharmacia
& Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no
rights or legitimate interests where Respondent failed to submit a Response to
the Complaint
and had made no use of the domain name in question); see also Vestel Elektronik Sanayi ve Ticaret AS v.
Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering
the domain name is not sufficient to establish rights or legitimate
interests
for purposes of paragraph 4(a)(ii) of the Policy”); see also 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 websites
that are
located at the domain names at issue, other than to sell the domain names for
profit); see also Hewlett-Packard Co. v. High Performance
Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights
or legitimate interests where the Respondent registered the domain
name with
the intention of selling the domain name).
Respondent is a independent distributor
of Complainant but was explicitly, per the distribution agreement, not
authorized or licensed
to use the WELLNESS INTERTIONAL NETWORK, LTD. mark. Respondent is known by this Panel as Leza
Messiah or alternatively as wellnessopportunitiesgroup.com. Respondent is not commonly known as WELLNESS
INTERNATIONAL NETWORK or <wellnessinternationalnetwork.org>. Therefore, Respondent has not met the
requirements of Policy ¶ 4(c)(ii). See
Strojirny v. Rautiainen, D2000-1394
(WIPO Dec. 20, 2000) (finding that Respondent has no rights or legitimate
interests in the domain name where Respondent
is not commonly known by the
distinct ADAST mark and has made no use of the domain name in question); see
also Gallup Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent
does not have rights in a domain name when Respondent is not known
by the
mark).
The Panel finds that Respondent has no
rights or legitimate interests in the disputed domain name, thus, Policy ¶
4(a)(ii) has been
satisfied.
Registration and Use in Bad Faith
Respondent had knowledge of Complainant’s
rights in the WELLNESS INTERTIONAL NETWORK, LTD. mark because Respondent
registered the
domain after becoming an independent distributor of Complainant. Through the independent distributor
contract, Respondent had notice that use of Complainant’s mark was strictly
prohibited. Therefore, Respondent’s
subsequent registration of the <wellnessinternationalnetwork.org>
domain name constitutes bad faith registration. See Am. Online, Inc.
v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that ICQ mark is so
obviously connected with Complainant and its products that the use
of the
domain names by Respondent, who has no connection with Complainant, suggests
opportunistic bad faith); see also Household
Int’l, Inc. v. Cyntom Enter., 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”).
Furthermore, Respondent acted in bad
faith by not using the <wellnessinternationalnetwork.org> domain
name other than attempting to sell it to Complainant “at a PREMIUM price.” It can be presumed that “a PREMIUM price” is
greater than Respondent’s out-of-pocket cost.
Hence, Respondent’s actions constitute bad faith use pursuant to Policy
¶ 4(b)(i). See Grundfos A/S v. Lokale, D2000-1347 (WIPO
Nov. 27, 2000) (finding that a failure to use the domain name in any context
other than to offer it for sale to
Complainant amounts to a use of the domain
name in bad faith); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web
Serv., FA 95685 (Nat. Arb. Forum
Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no
certain price is demanded,
are evidence of bad faith”); see also Dynojet Research, Inc. v. Norman,
AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated
bad faith when he requested monetary compensation
beyond out of pocket costs in
exchange for the registered domain name).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
DECISION
Having established all three elements required under
the ICANN Policy, the Panel concludes that the requested relief should be
hereby
GRANTED.
Accordingly, it
is Ordered that the <wellnessinternationalnetwork.org> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Crary, Panelist
Dated:
July 5, 2002
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