Generic Top Level Domain Name (gTLD) Decisions

DECISION

Drs. Foster & Smith, Inc. v. Amjad Kausar

Claim Number: FA0312000214908

PARTIES

Complainant is Drs. Foster & Smith, Inc. ("Complainant") represented by Steven M. Anderson of Ruder, Ware & Michler, L.L.S.C., 500 Third Street, Suite 700, P.O. Box 8050, Wausau, WI 54402‑8050. Respondent is Amjad Kausar, 5612150, P.O. Box 5706, Karachi, Pakistan 74000 ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <drsfosterandsmith.com> registered with Enom, Inc.

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.

R. Glen Ayers served as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 26, 2003; the Forum received a hard copy of the Complaint on December 1, 2003.

On December 3, 2003, Enom, Inc. confirmed by e‑mail to the Forum that the domain name <drsfosterandsmith.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 December 8, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 29, 2003 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@drsfosterandsmith.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 January 8, 2004, pursuant to Complainant's request to have the dispute decided by a single‑member Panel, the Forum appointed R. Glen Ayers to act 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

Complainant asserts that it is in the business of selling pet supplies and is the largest pet supply cataloger with a strong, established brand name which is also registered as a service mark with the U. S. Patent and Trademark Office. The mark consists of a rendering showing a dog, a cat, and a horse followed by "Doctors Foster & Smith" The Respondent's domain name is, of course, <doctorsfosterandsmith.com>. These are alleged to be identical or confusingly similar.

Allegedly, Respondent sells the use of this domain name "as a redirect”, and the domain name currently redirects users to a web page for PetCareRx, a competitor.

Respondent, whose name is not Foster, Smith or Dr. is alleged to have no rights or interests in the names.

Sale for redirection to a competitor's website is alleged to be bad faith and the intentional use "to attract, for commercial gain, internet users to the websites of ... competitors."

B. Respondent

Respondent did not submit a response.

C. Additional Submissions

There were no additional submissions.

FINDINGS

The findings here are very simple. Of course, the mark and domain name are identical or confusingly similar. A very large number of proceedings under the ICANN Rules hold that the substitution of  “and" for “&” (or the reverse) does not make the domain name any less “identical” or any less “confusingly similar.”

Further, Complainant has presented clear evidence that the Respondent has no legitimate interest in the mark, the names used, or any one of the names used.

Here, there is also compelling evidence of bad faith.  Complainant has submitted copies of web pages and the resolution of the domain name to a web site operated by a competitor.

Respondent filed no Response, but the facts set out by the Complainant are clear.

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 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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

The mark and domain name are confusingly similar. See e.g. Wright & Lato, Inc. v. Epstein, D2000-0621 (WIPO Sept. 2, 2000) (finding that the <wrightandlato.com> domain name is identical to Complainant’s WRIGHT & LATO mark, because the ampersand symbol (&) is not reproducible in a URL); Minn. State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding that the <mnlottery.com> domain name is confusingly similar to Complainant’s MINNESOTA STATE LOTTERY registered mark).

Rights or Legitimate Interests

Respondent has no legitimate interest in the domain name or any component of the name. See e.g., Winmark Corp. d/b/a Play It Again Sports v. In The Zone a/k/a Giant Sports Factory, FA 128652 (Nat. Arb. Forum Dec. 6, 2002) (finding that Respondent had no rights or legitimate interests in a domain name that used Complainant’s mark to redirect Internet users to a competitor’s website); Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services).

Registration and Use in Bad Faith

Respondent, by registering the domain name, and then "renting" the domain name for use by a competitor, clearly acted in bad faith, attempting to attract Internet users to a Competitor's web site for commercial gain. See e.g. Busy Body, Inc. v. Fitness Outlet, Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding bad faith where Respondent attempted to attract customers to its website, <efitnesswholesale.com>, and created confusion by offering similar products for sale as Complainant); Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy 4(b)(iv)).

DECISION

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

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

R. Glen Ayers, Panelist

Dated: January 22, 2004

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