Complainant is Healthy Source, LLC, of San Antonio, Texas, United States of America ("United States") internally represented.
Respondent is Registration Private, Domains by Proxy, LLC of Scottsdale, Arizona, United States / Rob Shibley, Net Partner Services, LLC of Norfolk, Virginia, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 13, 2016. On April 13, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 13, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 14, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amended Complaint. Complainant filed an amended Complaint on April 14, 2016.
The Center verified that the Complaint together with the 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 20, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 11, 2016.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on May 19, 2016. 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 is the owner of registration of the word trademark HEALTHY SOURCE on the Principal Register of the United States Patent and Trademark Office ("USPTO"), registration number 3113743, registration dated July 11, 2006, in international class 5, covering "vitamins, mineral supplements, nutritional supplements and dietary supplements". Complainant has filed the requisite affidavit establishing incontestability.
Complainant offers and sells vitamins and supplements on a commercial website with principal address at "". Complainant asserts that it began offering its branded vitamins and supplements on the Internet in 1995. Complainant has provided evidence of its registration in 1996 of the domain name .
According to the Registrar's verification, Respondent is registrant of the disputed domain name. According to that verification, the disputed domain name was created on August 5, 2015, and Respondent has been the registrant since at least April 13, 2016.
The disputed domain name has been used by Respondent to direct Internet users to a website which includes a top banner stating "Healthy Source", which banner identifier appears on each page of Respondent's website. There is no disclaimer of affiliation with Complainant. Products on Respondent's website appear to be directed toward muscle enhancement, enhancing human sexual performance, skin care and "brain dominance". While products appear to be available for single purchase (USD 248 for a 90‑day supply of "Raging Lion" for enhanced sexual performance), Respondent also offers a membership program that will refill orders (e.g., USD 139.97 per month for "Raging Lion").
Although Complainant did not submit documentary evidence of such activity, it states that it is receiving phone calls from American consumers who complain about Respondent's unauthorized credit card charges. According to Complainant, Internet users are confusing Complainant's website with Respondent's website, and these consumers are making demands on Complainant based on that confusion.
The Registration Agreement between Respondent and the Registrar subjects Respondent to dispute resolution under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)). 5. Parties' Contentions A. Complainant
Complainant contends that it owns rights in the trademark HEALTHY SOURCE based on use in commerce and as evidenced by registration at the USPTO.
Complainant contends that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because: (1) Complainant's rights in its trademark preceded Respondent's registration of the disputed domain name; (2) Complainant has not authorized or licensed Respondent to use its trademark in the disputed domain name or otherwise; (3) there is no doubt that Respondent is using the disputed domain name to correspond to Complainant's trademark because Respondent is using Complainant's trademark to identify Respondent's website; and. (4) diverting consumers for commercial gain does not constitute fair use of Complainant's trademark.
Complainant contends that Respondent registered and is using the disputed domain name in bad faith because: (1) Complainant has not authorized Respondent to use its trademark, and Respondent has no prior right in that trademark; (2) the disputed domain name leads to a website that sells competitive products and uses a confusingly similar trademark as that of Complainant; and, (3) Complainant's reputation is being damaged by association with questionable products and unauthorized credit card charges associated with Respondent. B. Respondent
Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center formally notified the Complaint to Respondent by email, fax and express courier. The express courier delivery record indicates that the Complaint was successfully delivered to Respondent's address in Norfolk, Virginia, United States. The Center followed the procedures for notification established by the Rules. The Panel is satisfied that Respondent was afforded a reasonable opportunity to respond to the Complaint in this proceeding.
Paragraph 4(a) of the Policy sets forth three elements that must be established by Complainant to merit a finding. that Respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has provided evidence of use of the trademark HEALTHY SOURCE in Internet commerce in the United States, and has provided evidence of ownership of registration of that trademark at the USPTO (see section 4. Factual Background supra). Registration on the Principal Register of the USPTO establishes a presumption of rights in favor of Complainant, and Respondent has not challenged those rights. The Panel determines that Complainant owns rights in the trademark HEALTHY SOURCE.
The disputed domain name directly incorporates Complainant's HEALTHY SOURCE trademark, excluding the vowels "ea" in the term "healthy". The disputed domain name is visually similar to Complainant's trademark. Although the term "hlty" does not convey the same meaning as "healthy", Internet users searching for Complainant's website might reasonably conclude that Complainant had elected to use a shortened form of its trademark in a domain name, particularly as it is combined with the second term "source" used in Complainant's trademark. The sound of the trademark and the disputed domain name are somewhat different because of the absence of vowels in the initial term. Nonetheless, taken as a whole the sound of the two combination terms is somewhat similar. Respondent has evidenced the intent to take advantage of confusing similarity between Complainant's trademark and the disputed domain name because Respondent uses Complainant's trademark as the banner identifier of its website. The Panel determines that the disputed domain name is confusingly similar to Complainant's HEALTHY SOURCE trademark.
The Panel determines that Complainant owns rights in the trademark HEALTHY SOURCE, and that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you 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 (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 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." (Policy, paragraph 4(c)).
Complainant's allegations to support Respondent's lack of rights or legitimate interests in the disputed domain name are outlined above in section 5A, and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not presented evidence that might rebut the prima facie showing by Complainant.
The evidence before the Panel does not otherwise suggest rights or legitimate interests on the part of Respondent.
The Panel determines that Complainant has demonstrated that Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name "has been registered and is being used in bad faith" (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that "for the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith." Those include that: "(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent's] website or other online 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 [the respondent's] website or location."
Respondent is using the disputed domain name to direct Internet users to a website that uses Complainant's trademark as its banner identifier, and which website offers and sells products that are in the same general product category as Complainant's products. Respondent is acting for commercial gain. Respondent is using the disputed domain name to intentionally attempt to attract for commercial gain Internet users to Respondent's website by creating a likelihood of confusion with Complainant through its trademark as source, sponsor, affiliate or endorser of Respondent's website.
The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
Based on its finding that Complainant has satisfied all three elements of the Policy required for a determination in its favor, the Panel determines that the disputed domain name should be transferred by the Registrar to Complainant. 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.
Frederick M. Abbott
Sole Panelist
Date: May 30, 2016
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