Complainant is Neways, Inc. of Springville, Utah, United States of America, represented by Workman Nydegger, United States.
Respondent is Miguel Jimenez of Orem, Utah, United States, represented pro se. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Networks Solutions, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2012. On July 13, 2012, the Center transmitted by e-mail to the Registrar and CentralNic a request for registrar verification in connection with the disputed domain name. On July 13, 2012, the Registrar and CentralNic transmitted by e-mail 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 CentralNic Dispute Resolution Policy (the “Policy”), the Rules for CentralNic Dispute Resolution Policy (the “Rules”), and the World Intellectual Property Organization Supplemental Rules for CentralNic 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 July 19, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 8, 2012. Respondent filed a response on July 19, 2012. On August 21, 2012, the Center notified the parties about the commencement of panel appointment process.
The Center appointed Robert A. Badgley as the sole panelist in this matter on August 28, 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
Complainant manufactures and sells numerous nutritional, personal care, and household products, such as nail polish, deodorant, lotions, soaps, dietary supplements, laundry detergent, and many other goods. Complainant has marketed and sold its products under the mark NEWAYS since 1992 and in 23 countries. Complainant holds numerous registered trademarks, going back to at least 2001, for the NEWAYS mark.
The Domain Name was registered on December 9, 2011. The Domain Name resolves to a website where various hyperlinks to various products and services appear. Some of the links include: “Neways Products,” “Neways Distributor,” “Neways Online,” “Sealing Products,” “Pipe Filters,” and so forth. Under the logo of the Registrar, Network Solutions, in the upper right hand corner of the home page, appears the sentence “This Page is Under Construction – Coming Soon!” According to Respondent, the hyperlinks were created and maintained by the Registrar because Respondent was merely “parking” the Domain Name. Respondent denies receiving any revenue from the click-through links on the website to which the Domain Name resolves.
On April 25, 2012, Respondent sent an unsolicited e-mail to Complainant which states in relevant part:
It is my intention to sell the domains [N and N] to the highest bidder and I thought your company might have an interest in buying. If that is the case, you will be first in line if we agree on a selling price. Please let me know if you would be interested.
Respondent alleges that Complainant “has shown a pattern of illegal behavior and deception in their business practices,” including the allegation that “Complainant’s founders [were] sentenced to 2 years in prison.” 5. Parties’ Contentions A. Complainant
The salient factual allegations relied upon by Complainant are set forth above in the Factual Background section, and the main arguments Complainant offers in aid of its Complaint are reflected below in the Discussion and Findings section. Complainant alleges the Domain Name is identical or confusingly similar to Complainant’s NEWAYS mark, that the Respondent has no rights or legitimate interest in the Domain Name and that the Domain Name was registered or used in bad faith. B. Respondent
Respondent asserts that he purchased the Domain Name “as a possible company domain idea that was later discarded.” Respondent does not elaborate at all about this alleged “idea.”
Respondent denies bad faith because he waited more than four months (December 9, 2011 to April 25, 2012) before offering the Domain Name for sale.
Respondent argues further that the term “Neways” is used by several other businesses unrelated to Complainant. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered or is being used in bad faith. A. Identical or Confusingly Similar
It is undisputed that Complainant holds rights, through registration and longstanding use, in the mark NEWAYS. The Panel finds the relevant portion of the Domain Name, i.e., the third-level domain, is identical to the NEWAYS mark.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish his rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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 or service mark at issue.
Complainant makes a prima facie case in its Complaint that none of the above-listed circumstances demonstrating rights or legitimate interests are present in this case.
The fact that there may be companies besides Complainant who use the “Neways” name or mark in some fashion does not mean that Respondent has a legitimate interest in that term in a domain name. If one such other company were the respondent in this case, then that fact might matter to the outcome here. But it does not, since Respondent himself has shown no right or legitimate interest in that term.
Respondent’s claim that he registered the Domain Name to pursue “a possible company domain idea that was later discarded” cannot be accepted without further support. Respondent offered absolutely no explanation of what this “idea” was, and offered no evidence to support this bald claim.
In short, Respondent has not provided the Panel with any basis to conclude that he has a right or legitimate interest in respect of the Domain Name.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered or Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration or use the Domain Name in “bad faith”:
(i) Respondent has registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the Domain Name; or
(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s web site or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
(v) you have provided false contact details to us.
The Panel concludes that Respondent registered and used the Domain Name in bad faith within the meaning of Policy paragraph 4(b)(i). As noted above, there is no evidence that Respondent had any bona fide plan in mind when registering the Domain Name. There is, by contrast, clear evidence that Respondent made an unsolicited offer to Complainant to sell the Domain Name if Complainant was the “highest bidder.” It is reasonable to this Panel to conclude that the intent was to secure payment in an amount exceeding Respondent’s out-of-pocket costs directly related to the Domain Name. Even if Respondent’s alleged initial motives were accepted as true (and they are not so accepted), the unsolicited offer to sell the Domain Name at a profit constitutes bad faith use in violation of paragraph 4(b)(i). The CentralNic Policy allows for a Complaint to succeed based on a finding of either bad faith registration or bad faith use.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied. 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 Complainant.
Robert A. Badgley
Sole Panelist
Dated: August 29, 2012
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