WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mead Johnson & Company v. David Webb
Case No. D2007-0571
1. The Parties
Complainant is Mead Johnson & Company, a subsidiary of Bristol-Myers Squibb Company, New York, United States of America, represented by Quinn Emanuel Urquhart Oliver & Hedges, LLP, United States of America.
Respondent is David Webb, Richardson, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with�eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April�17,�2007. On April�17,�2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On April�17,�2007, eNom transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on April�20,�2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May�10,�2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May�11,�2007.
The Center appointed Michelle Brownlee as the sole panelist in this matter on May�24,�2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant owns United States Trademark Registration No. 397,676 for the mark NUTRAMIGEN for “food products for infants, invalids, and adults, composed of maltose, dextrins, enzymatic digest of casein, corn oil, arrowroot starch, calcium gluconate, brewer’s yeast powder, and minerals” and United States Trademark Registration No. 509,558 for the mark NUTRAMIGEN for “hypo-allergenic product composed of a hydrolysate of protein, dextrin, maltose, milk fat and other ingredients,” both in International Class 5. Both registrations claim first use of the mark in commerce on December�24,�1941. Complainant also owns registrations for the NUTRAMIGEN trademark in numerous other countries around the world.
5. Parties’ Contentions
A. Complainant
Complainant has used the NUTRAMIGEN trademark extensively and exclusively for more than sixty years in connection with pediatric feeding formula products. Complainant has invested significant resources in advertising and promoting the products sold under the trademark, and, as a result, the mark has acquired strong goodwill and reputation. Complainant uses the mark throughout the world.
Complainant contends that Respondent has registered and is using the Domain Name that is identical to Complainant’s trademark in connection with a default search page that links to web sites that sell products, that Respondent has no rights or legitimate interests in the Domain Name, and that Respondent has registered and is using the Domain Name in bad faith.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the 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.
A. Identical or Confusingly Similar
The Domain Name is identical to Complainant’s registered trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
Complainant has established a prima facie case of Respondent’s lack of rights or legitimate interests to the domain name.
Respondent has not rebutted Complainant’s contentions or provided any evidence of rights or legitimate interest in the Domain Name. Respondent does not appear to be known by “Nutramigen” and his use of the Domain Name to provide links to retail web sites (a practice that is typically engaged in to collect click-through referral fees) cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use. See PRL USA Holdings, Inc. v. LucasCobb,WIPO Case No. D2006-0162. Based on the case file, the Panel finds that Respondent does not have any right or legitimate interest in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
Complainant has established bad faith under Paragraph 4(b)(iv) of the Policy. Respondent’s use of the Domain Name to earn referral fees by linking to other web sites attracts Internet users to Respondent’s site by creating confusion as to source and results in commercial gain to Respondent. Accordingly, the Panel finds that the Domain Name was registered and used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, , be transferred to the Complainant.
Michelle Brownlee
Sole Panelist
Date: June�7,�2007
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