Complainant is MET-Rx Substrate Technology, Inc., New York, United States of America, represented by Gowling Lafleur Henderson, LLP, Canada.
Respondent is ctdlabs, Texas, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 26, 2011. On April 27, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name(s). On April 28, 2011, GoD, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center sent an email communication to Complainant on May 5, 2011 inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 5, 2011.
The Center verified that the Complaint together with amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 May 6, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 26, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 27, 2011.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on June 23, 2011. 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 produces and sells sports nutrition products, such as high-protein meal replacement powders, vitamin formulas and strength enhancing creatine products used extensively by athletes, bodybuilders and other fitness enthusiasts. Since 1991, Complainant has sold its products under the trademark MET-RX. Complainant owns numerous trademark applications and registrations throughout the world comprised of or containing MET-RX.
Complainant sells to mass merchandisers, drug store chains, drug wholesalers, supermarket chains and over the Internet via its own websites and third party websites. Complainant has a global consumer base with international distributors across the world, on every inhabited continent. For the fiscal year ending September 30, 2010, Complainant generated revenues in excess of USD 56 million.
Complainant has spent over USD 25 million promoting and advertising its products. It sponsors numerous athletes and celebrities, and has been the primary sponsor of the World’s Strongest Man competition. It also publishes newsletters and a magazine named MET-RX, which showcases its products, athletes and events.
Complainant has registered and uses several websites to promote its products, athletes and events via the Internet, including “”, “” and “.”
According to Complainant and the exhibits to the Complaint, Respondent is a clinical testing and developing company that produces dietary supplements for use in the fields of bodybuilding, weight loss and sport nutrition, as evidenced by Respondent’s website at “.”
Respondent registered the disputed domain name on March 3, 2010. According to the exhibits, as recently as February 8, 2011, the disputed domain name resolves to a pay-per-click website displaying links to Complainant’s competitors, such as Supplements Canada, Body Choice Nutrition, SND Canada, Same Day Supplements and others.
Complainant sent cease and desist letters to Respondent on February 23, 2011 and again on April 4, 2011. Respondent did not reply to these letters. However, the website became inactive subsequent to the cease and desist letters. 5. Parties’ Contentions A. Complainant
Complainant contends that it has rights in MET-RX by virtue of its numerous trademark registrations around the world, and that its rights precede Respondent’s registration and use of the disputed domain name. It further contends that the disputed domain name is identical to Complainant’s MET-RX mark and thus is confusingly similar. Complainant alleges that Respondent has no legitimate interests in or rights to use the MET-RX mark in the disputed domain name, and Respondent registered and is using the disputed 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 divest a respondent of a disputed domain name, a complainant must demonstrate each of the following:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant owns numerous marks registered throughout the world containing MET-RX for an array of nutritional supplements, and has sold these products under the mark since 1991. As set forth above, Complainant sells these products on each inhabited continent, and also promotes its products via advertisements, publications, websites and sponsorships of athletes and competitions. Complainant has demonstrated that it has rights in the MET-RX mark.
The disputed domain name, , contains Complainant’s MET-RX mark in its entirety. It is well settled that use of the extension “.org” does not avoid confusion. Additionally, many UDRP panels have held that the elimination of a hyphen in a domain name cannot avoid confusing similarity. The disputed domain name thus is identical to Complainant’s mark.
The Panel finds that Complainant has rights in the MET-RX mark, and that the disputed domain name is confusingly similar to Complainant’s registered mark. Complainant meets the first criterion of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP decisions have found it sufficient for Complainant to make a prima facie showing of its assertion.
Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the MET-RX mark. Respondent is not known under the disputed domain name. On the evidence before the Panel, the disputed domain name resolved to a pay-per-click website displaying links to Complainant’s competitors, therefore Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Complainant has sold nutritional supplements under the MET-RX mark since 1991 and currently markets and sells the products worldwide. Additionally, the disputed domain name promotes nutritional supplements competitive with Complainant’s. Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain name in March 2010. The Panel finds that Respondent registered the disputed domain name in bad faith.
Complainant sent Respondent two cease and desist letters, to which Respondent did not respond. This Panel therefore infers that Respondent had specific knowledge of Complainant’s marks. Though at some point after Complainant sent the cease and desist letters the website became inactive, Respondent still holds the registration for , has not acceded to Complainant’s request to voluntarily transfer the domain to Complainant, and could continue to use Complainant’s mark as part of the disputed domain name in bad faith.
Under paragraph 4(b)(iv) of the Policy, the Panel may find that Respondent has used the disputed domain name in bad faith if “[respondent] has intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or of a product or service on your web site or location.” Here, the disputed domain name resolves or resolved to a website that contains links to other sites for nutritional supplements that directly compete with Complainant’s MET-RX products. Respondent’s use of the disputed domain name clearly is an attempt to create confusion to attract Internet users to Respondent’s website for commercial gain.
It is now a well-known practice to display on a web page or search engine various links to other commercial websites under a pay-per-click commission scheme: every link activated by an Internet user enables the host to collect financial remuneration proportional to the number of connections. See, e.g., Deutsche Telekom AG v. WWW Enterprise, Inc.,WIPO Case No. D2004-1078. Therefore, in the Panel’s view, it is evident that Respondent has registered and used the disputed domain name with the intent to attract Internet customers looking for Complainant’s nutritional supplements, thereby likely profiting from click-through revenue generated by the sponsored links.
This Panel finds that Respondent has registered and used the disputed domain name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy and that Complainant meets the third criterion of paragraph 4(a) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Sandra A. Sellers
Sole Panelist
Date: July 5, 2011
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