The Complainant is American Diabetes Association of Virginia, United States of America, represented by Caesar, Rivise, Bernstein, Cohen, & Pokotilow, Ltd., United States.
The Respondent is Yao Yao of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with NetEarth One Inc. d/b/a NetEarth (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2012. On May 9, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the 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” 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 the Respondent of the Complaint, and the proceedings commenced on May 14, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 5, 2012.
The Center appointed Alan L. Limbury as the sole panelist in this matter on June 13, 2012. 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 (undisputed facts)
Since 1940 the Complainant, a United States nonprofit health organization, has provided diabetes research, information and advocacy services. It is the proprietor of United States federally registered trademark DIABETES CARE, No. 2,587,693, first used in 1978 and registered on July 2, 2002 for “journal of clinical and applied diabetes research and education for the healthcare practitioner to increase knowledge, stimulate research and promote better management of people with diabetes”.
The Domain Name was created on March 19, 2011. At the time the Complaint was filed with the Center, it resolved to a website containing advertising links to third party websites promoting, inter alia, diabetes-related products and services. 5. Parties’ Contentions A. Complainant
The Complainant says the Domain Name is confusingly similar to its well-known DIABETES CARE trademark and that the Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, the Complainant says the Respondent does not appear ever to have been known by the Domain Name; that given the striking similarity to the Complainant’s trademark, it is difficult to conceive of any legitimate use that the Respondent might have had in mind for the Domain Name, which must have been registered in order to exploit user confusion and to trade off the reputation of the Complainant’s trademark; and that the Respondent’s use of the Domain Name is for commercial gain and not in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
As to bad faith, the Complainant says the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website and must have known of the Complainant’s trademark when registering the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To qualify for cancellation or transfer of the Domain Name, the Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(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
(ii) the Domain Name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman,WIPO Case No. D2000-1080 and AltaVista Company v. Grandtotal Finances Limited et. al.,WIPO Case No. D2000-0848. A. Identical or Confusingly Similar
The Domain Name is clearly confusingly similar to the Complainant’s well-known DIABETES CARE mark. The word “journal” serves to reinforce the confusing similarity and the two hyphens do nothing to detract from the distinctiveness of that mark. The top level domain “.com” may be disregarded: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
The Complainant has established this element of its case. B. Rights or Legitimate Interests
The Panel finds that the Complainant’s DIABETES CARE mark is widely known. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in the Domain Name on the part of the Respondent. The burden of production therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that domain name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
The Complainant has established this element of its case. C. Registered and Used in Bad Faith
The Complainant relies on paragraph 4(b)(iv) of the Policy. This sets out one of four illustrative circumstances which, though not exclusive, shall be evidence of the registration and use of a domain name in bad faith, namely:
“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 the respondent’s website or location or of a product or service on its website or location.”
The content of the website to which the Domain Name resolved at the time the Complaint was filed supports the Complainant’s assertions, which the Respondent has not denied. Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith.
The Complainant has established this element of its case. 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 Domain Name be transferred to the Complainant.
Alan L. Limbury
Sole Panelist
Dated: June 17, 2012
Full & Egal Universal Law Academy