Complainant is TTAC Publishing, LLC of Stateline, Nevada, United States of America (“United States” or “US”), represented by Davis & Gilbert LLP, United States.
Respondent is Michael Carroll of Naperville, Illinois, 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 May 25, 2017. On May 26, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 1, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 21, 2017. The Center received an email communication from Respondent on May 29, 2017. The Response was filed with the Center on June 20, 2017. The Center received a supplemental submission from Complainant on June 30, 2017, which was allowed and considered by the Panel. Respondent was given the opportunity to file a sur-reply via Panel Order on July 4, 2017, but the Respondent made no submission.
The Center appointed Richard W. Page as the sole panelist in this matter on June 28, 2017. 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 was formed in 2014. Since May 28, 2014, Complainant has used the trademark THE TRUTH ABOUT CANCER (“TTAC Mark”) in connection with the website located at (“TTAC Website”). The TTAC Website provides free resources, including articles, videos, and blog posts concerning the cause of cancer, prevention of cancer and other ailments, and alternative treatments for cancer, such as nutritional supplements, foods and lifestyle practices. The TTAC Website also sells informational products about cancer prevention and cancer treatments, such as videos, audio recordings, and written materials, bundled into various lifestyle programs, and features third-party advertising for dietary supplements directed towards cancer treatment and prevention.
The Disputed Domain Name was registered on April 28, 2016. The Disputed Domain Name resolves to a website called, “The Truth About Cancer Store” (“TTAC Store Website”) and was launched in or around late April or early May 2016. Consistently since its inception, the TTAC Store Website has maintained a blog with posts about various holistic treatments for cancer and other ailments, and has offered for sale dozens of nutritional products and dietary supplements marketed as being able to prevent cancer, treat cancer, or alleviate symptoms of various cancers and other ailments. Many of these products and supplements also are referenced in the informational materials on the TTAC Website and are advertised for sale by third-party advertisers on the TTAC Website. 5. Parties’ Contentions A. Complainant
Complainant contends that, for the last three years, it has continuously used the TTAC Mark in connection with the TTAC Website to provide the public with informational products and services related to cancer, cancer prevention and cancer treatment. Complainant further contends that its use of the TTAC Mark has received massive public exposure. For example, in the one-year period dating April 1, 2016 through March 31, 2017, the TTAC Website received over 43.5 million hits, with close to 69 million page visits, across over 18 million unique users. In addition, the TTAC Mark is also prominently used as the title of Complainant’s Facebook page, which has close to one million followers, and its YouTube page, which boasts eighty thousand subscribers and has received over 12 million views of its dozens of original videos. Through Complainant’s longstanding and widespread online use, the TTAC Mark has developed a distinctive reputation and significant goodwill among the consuming public.
Complainant further contends that it owns US Trademark Application Serial No. 86/560,821 for THE TRUTH ABOUT CANCER, which was filed with the United States Patent and Trademark Office (“USPTO”) on March 11, 2015 and is currently pending registration.
Complainant alleges that the Disputed Domain Name incorporates in its entirety, and is nearly identical to, the TTAC Mark, merely adding to the TTAC Mark the generic word “store”. The addition of the word “store”, for the retail-focused TTAC Store Website, is not sufficient to distinguish the Disputed Domain Name from the TTAC Mark.
Complainant further alleges that the similarity between the Disputed Domain Name and the TTAC Mark is especially acute in this case because the one word that separates the Disputed Domain Name and the TTAC Mark, namely “store”, not only describes the TTAC Store Website, it also describes the overlapping retail services that Complainant provides under the TTAC Mark. Respondent used the Disputed Domain Name and the associated TTAC Store Website to run a store that appears to be related to that operated on the TTAC Website, focusing on the same subject matter and targeting the same consumers as the TTAC Website. The Disputed Domain Name and the associated TTAC Store Website inevitably are mistaken by consumers as the “store” where the products discussed and advertised on the TTAC Website are available for sale.
Complainant further alleges that at least as early as June 6, 2016, and likely from its launch in in April or May 2016, and continuing until approximately April 10, 2017, the TTAC Store Website expressly referenced Complainant and the TTAC Website and falsely suggested that the TTAC Store Website was related to Complainant and the TTAC Website. Specifically, the title and headings on the TTAC Store Website read “The Truth About Cancer”. Additionally, the “About” page on the TTAC Store Website referenced a series of TTAC informational videos and directed website visitors to the TTAC Website to purchase those videos (stating, “To order the video series go to TheTruthAboutC”), thus reinforcing the false impression that the TTAC Store Website and the TTAC Website are affiliated.
Complainant further alleges that it sent a cease-and-desist letter to Respondent on July 22, 2016, demanding that Respondent discontinue all use of the terms “The Truth About Cancer” and “The Truth About Cancer Store”, including by ceasing all use of the Disputed Domain Name or transferring the Disputed Domain Name to Complainant. Respondent refused, stating only that “It might be seen by the public as hypocritical and contradictory to your mission statement to be filing a law suit [sic] or threatening to file a lawsuit against a non profit organization run/ owned by a stage 4 cancer patient.”
Complainant continues that because Respondent failed to cease use of the terms “The Truth About Cancer” and “The Truth About Cancer Store”, including by cancelling or transferring the Disputed Domain Name, Complainant followed up with another letter to Respondent on March 17, 2017, renewing its demands. On April 10, 2017, Complainant received an emailed reply stating that the references to Complainant had been removed from the TTAC Store Website, but failing to indicate that the Disputed Domain Name would be cancelled or transferred.
Complainant continues that while it does appear that, as of the date of this filing, the TTAC Store Website no longer expressly references Complainant, Respondent nevertheless is continuing to use and operate the Disputed Domain Name and TTAC Store Website, which make use of the TTAC Mark in its entirety, to offer the same products and services as Complainant and the TTAC Website and to target the same consumer demographic as Complainant and the TTAC Website.
Complainant continues that the Disputed Domain Name and associated TTAC Store Website have already been causing this confusion in the marketplace – even among educated consumers with close connections to Complainant. As recently as the month during which the Complaint was filed, a doctor who supports Complainant’s work in cancer prevention and treatment, and who has previously participated as a speaker at Complainant’s conference, reached out to Complainant’s founder to ask about a natural immunotherapy product that the doctor saw offered for sale on the TTAC Store Website. The doctor mistakenly believed that the TTAC Store Website was affiliated with Complainant. He stated in his email: “It was for sale, RERUM, on the truth about cancer store website. I was directing my patients there to buy it but they told me it was no longer available. I wanted to support you and the site and will again if available.” Complainant’s founder responded, explaining: “Got it. The reason I was confused is that is NOT our website. Somebody is using our name to sell products.” The doctor’s shocked response followed: “OMG thank you for telling me this. I have been sending people to them hoping to be supportive of you. I will inform people now of this.”
Complainant avers that the fact that the Disputed Domain Name utilizes the TTAC Mark in its entirety, and only adds the generic word “store”, is, in and of itself, sufficient to satisfy the requirement under the Policy that the Disputed Domain Name be identical or confusingly similar to the TTAC Mark. Moreover, the added word “store” makes the Disputed Domain Name even more confusingly similar to the TTAC Mark, because it concisely signifies retail services that Complainant provided under the TTAC Mark. Proof that the Disputed Domain Name is identical or confusingly similar to the TTAC Mark is illustrated by the instances of actual confusion between the Disputed Domain Name and the TTAC Mark that have resulted even among educated individuals closely connected with Complainant.
Complainant further argues that the facts of this dispute soundly show that Respondent has no rights or legitimate interests in the Disputed Domain Name, not least because: (1) prior to notice of this dispute, Respondent was not using the Disputed Domain Name in connection with a bona fide offering of goods or services; (2) Respondent never has been known by the Disputed Domain Name; and (3) Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain, and instead is using the Disputed Domain Name to misleadingly divert Complainant’s actual and potential consumers.
Complainant further argues that with respect to the first prima facie factor, it is evident that Respondent was not using the Disputed Domain Name in connection with a bona fide offering of good and services prior to notice of this dispute. Respondent had only been operating the TTAC Store Website for three months before Complainant sent its first cease-and-desist letter on July 22, 2016, and put Respondent on notice of this dispute. All continued use of the Disputed Domain Name following that date is not bona fide use. Furthermore, Respondent’s offering for sale of holistic dietary products and supplements on the TTAC Store Website, even within its first three months of operation was not a bona fide offering of goods, because from the outset, Respondent was intentionally trading on Complainant’s reputation in the marketplace and taking advantage of the goodwill in the TTAC Mark. This conclusion is supported by the fact that the TTAC Website predates the Disputed Domain Name’s registration date by approximately two years and, as a self-identified cancer patient, Respondent was undoubtedly aware of the TTAC Website prior to this dispute.
Complainant further argues with respect to the second prima facie factor, Respondent is not commonly known by the Disputed Domain Name, and business record searches conducted by Complainant indicate that Respondent has no registered business name in connection with the Disputed Domain Name. Respondent also does not have a license from or other relationship with Complainant that would authorize Respondent to use the TTAC Mark in the Disputed Domain Name.
Complainant further argues with respect to the third prima facie factor, Respondent also is not using the Disputed Domain Name for the purpose of criticism or informational content, or otherwise making only legitimate noncommercial or fair use of the Disputed Domain Name. To the contrary, Respondent’s use of the Disputed Domain Name in connection with the retail-focused TTAC Store Website is purely for commercial gain.
Complainant alleges that Respondent registered and is using the Disputed Domain Name in a clear bad faith attempt to free ride on the commercial success and consumer goodwill that Complainant has developed in the TTAC Mark and the TTAC Website. Complainant launched the TTAC Website in 2014 and immediately began to attract a large following. Respondent unquestionably was aware of the TTAC Website both when he registered the Disputed Domain Name on April 28, 2016, and when he launched the TTAC Store Website very shortly thereafter. By his registration and use of the Disputed Domain Name it is evident that Respondent was attempting (successfully) to create a false association between the TTAC Store Website and the TTAC Website, to fraudulently attract to the TTAC Store Website consumers who mistakenly believed that it was affiliated with Complainant and the TTAC Website, and to induce those confused consumers to purchase goods from the TTAC Store Website. Respondent’s conduct, taken entirely for person financial gain, is clearly bad faith, in violation of paragraph 4(b)(iv) of the Policy.
Complainant further alleges that Respondent’s efforts to cultivate a false association between Complainant and the TTAC Store Website disrupts the business of Complainant, which further demonstrates Respondent’s bad faith pursuant to paragraph 4(b)(iii) of the Policy.
Complainant further alleges that Respondent himself provides significant evidence of his bad faith conduct on the TTAC Store Website, where, for a full year, Respondent had made express references and provided direct links to the TTAC Website, in an effort to falsely suggest to consumers that the two unrelated sites had a direct business connection. After receiving two demand letters from Complainant, Respondent discontinued some uses of the TTAC Mark on the TTAC Store Website by retitling some of the TTAC Store Website pages “The Real Truth Behind Cancer” but did not cease using the TTAC Mark as a primary element in the Disputed Domain Name itself. As a result, the Disputed Domain Name continues to infringe upon Complainant’s rights, a fact of which Respondent is clearly aware.
Complainant contests Respondent’s contentions that the TTAC Mark registration was rejected by the USPTO and the TTAC Mark is not valid due to descriptiveness. The USPTO examining attorney issued an office action to Complainant stating, among other things, that there was a possibility that the TTAC Mark application would be refused due to a potential likelihood of confusion with a prior-filed trademark application filed on March 17, 2014. The examining attorney did not suggest that the TTAC Mark was merely descriptive. The office action did not identify any inherent invalidity in the TTAC Mark.
Complainant continues that on January 6, 2016, the examining attorney issued a suspension notice in connection with the TTAC Mark application. The suspension notice stated that the prior-filed mark application preceded Complainant’s application date and that if the prior-filed application were to mature to registration, Complainant’s application may be refused registration on the grounds of likelihood of confusion.
Even if Complainant’s registration application were to be refused, Complainant would be given the opportunity to respond to the refusal and present arguments in favor of registration.
Complainant continues that the facts do not support a finding that the TTAC Mark is descriptive because of previously published books with the title “The Truth About Cancer”. The titles of single books do not function as and cannot be registered as a trademark. All of these works are decades old, do not appear to be widely distributed and at least one of them is out of print, casting doubt on the suggestion that “The Truth About Cancer” is so ubiquitous that Complainant cannot claim right to it in connection with its particular services.
Complainant further contends that, regardless of registration with the USPTO, the TTAC Mark is still valid under common law for the reasons set forth in in the Complaint, and that Complainant still has grounds to bring this action against Respondent. B. Respondent
Respondent contends that the TTAC Mark’s application to the USPTO was refused. Respondent further contends that Complainant is operating under a suspended trademark, has never sold nutritional products and is currently not selling nutritional products on the TTAC Website at or under the brand name “The Truth About Cancer”. All advertising for nutritional products leads to a website known as Epigenetic Labs. Therefore, there can be no confusion in the brand or trademark since the TTAC Store Website at has never sold products similar in nature to those sold on the TTAC Website .
Respondent argues that when the Disputed Domain Name was purchased: (a) Complainant was not selling nutritional products and (b) its trademark was in a suspended status as it is now.
Respondent further argues that there are many famous books titled “The Truth About Cancer” published prior to the establishment of the TTAC Mark. For example, The Truth About Cancer by Jan de Winter, released in June 1986; The Truth About Cancer released in 1968; The Truth About Cancer by Charles Cameron, released in 1956; and The Truth About Breast Cancer, released in 1996. There is also a famous video created prior to Complainant’s filing for registration of the TTAC Mark – specifically the following DVD aired on TV in 2008, which has been sold as a DVD since 2008. “The Truth About Cancer DVD” is told in the first person by Linda Garmon, aired on May 13, 2008, and is currently sold on Amazon.
Respondent asserts that Complainant does not have trademark rights which are enforceable in this proceeding. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to the TTAC Mark in which Complainant has rights; and,
(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and,
(iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Preliminary Issue: Complainant’s Supplemental Filing
On June 30, 2017, Complainant submitted an unsolicited supplemental filing, and the Panel issued Administrative Panel Procedural Order No. 1 on July 4, 2017, inviting Respondent to provide a response to Complainant’s supplemental filing. Respondent did not file any further submission.
Paragraphs 10 and 12 of the Rules in effect grant the Panel sole discretion to determine the admissibility of supplemental filings. Paragraph 10(d) states: “The Panel shall determine the admissibility, relevance, materiality and weight of the evidence”. Paragraph 12 states: “In addition to the complaint and the response, the Panel may request, in its sole discretion, further statements or documents from either of the Parties”.
Complainant’s supplemental filing was submitted to alert the Panel to what it alleges are false and untrue statements made in the Response, i.e., subsequent to the filing of the Complaint, that could not have been reasonably anticipated at the time it filed the Complaint.
Accordingly, the Panel has decided to accept Complainant’s supplemental filing. B. Identical or Confusingly Similar
Complainant contends that it has a pending application with the USPTO for registration of the TTAC Mark which should act as prima facie evidence of its ownership and the validity of the TTAC Mark. Respondent contests whether Complainant has enforceable rights in the TTAC Mark, because the application has been suspended pending resolution of a prior-filed and potentially similar trademark.
The Panel is unwilling to find that a suspended application at the USPTO constitutes prima facie evidence that the TTAC Mark is enforceable in this proceeding. Therefore, the analysis of Complainant’s rights involves common law trademark.
To demonstrate common law trademark rights, Complainant must show that the TTAC Mark has become distinctive through the acquisition of secondary meaning. See McCarthy on Trademarks and Unfair Competition (4th ed. 2000), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.3. Secondary meaning is the consumer’s association of the mark with a particular source or sponsor and is established out of long association of the mark with the business, whereby the name and the business have become synonymous in the mind of the public, submerging the primary meaning of the name in favor of its meaning as a term identifying that business. See Visser v. Macrese et al., 214 Cal. App. 2d 249, 253, 29 Cal. Rptr. 367, 369 (Cal. Dist. Ct. App. 4th 1963); see also Levis Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1354 (9th Cir. 1991) (en banc). In assessing secondary meaning, one must consider a variety of factors, including, but not limited to, (1) advertising expenditures, (2) consumer . . . linking [of] the mark to the source, (3) unsolicited media coverage of the product, (4) sales success, . . . and [(5)] length and exclusivity of the mark’s use.
Complainant contends that, for the last three years, it has continuously used the TTAC Mark in connection with the TTAC Website to provide the public with informational products and services related to cancer, cancer prevention and cancer treatment. Complainant further contends that its use of the TTAC Mark has received massive public exposure. For example, in the one-year period dating April 1, 2016 through March 31, 2017, the TTAC Website received over 43.5 million hits, with close to 69 million page visits, across over 18 million unique users. In addition, the TTAC Mark is also prominently used as the title of the TTAC’s Facebook page, which has close to one million followers, and its YouTube page, which boasts eighty thousand subscribers and has received over 12 million views of its dozens of original videos. Through Complainant’s longstanding and widespread online use, the Panel accepts that the TTAC Mark has developed a distinctive reputation and significant goodwill among the consuming public.
Respondent objects that the TTAC Mark is descriptive, that Complainant has not sold any products, and that Complainant’s registration was preceded by several published works including the title “The Truth About Cancer”.
The Panel concludes that Complainant has made a sufficient showing of enforceable common law trademark rights in the TTAC Mark.
Complainant further contends that the Disputed Domain Name is identical with and confusingly similar to the TTAC Mark pursuant to paragraph 4(a)(i) of the Policy, because the entirety of the TTAC Mark is included in the Disputed Domain Name. Furthermore, the inclusion of the word “store” is non-distinctive under the circumstances.
Numerous UDRP decisions have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark. See F. Hoffmann-La Roche AG v. P Martin,WIPO Case No. D2009-0323; Dixons Group Plc v. Mr. Abu Abdullaah,WIPO Case No. D2001-0843; V&S Vin & Sprit AB v. Ooar Supplies,WIPO Case No. D2004-0962; Research in Motion Limited v. One Star Global LLC,WIPO Case No. D2009-0227; Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign,WIPO Case No. D2004-0206; SoftCom Technology Consulting Inc. v. Olariu Romeo/Orv Fin Group S.L.,WIPO Case No. D2008-0792.
The Panel finds that the Disputed Domain Name is confusingly similar to the TTAC Mark for purposes of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy.
Section 2.1 of the WIPO Overview 3.0 states that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interests of Respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Name. Where Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
Paragraph 4(c) of the Policy allows three nonexclusive methods for the Panelist to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Name:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed 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 Disputed 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 Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the TTAC Mark.
Complainant argues that with respect to the first prima facie factor, it is evident that Respondent was not using the Disputed Domain Name in connection with a bona fide offering of good and services prior to notice of this dispute. Respondent had only been operating the TTAC Store Website for three months before Complainant sent its first cease-and-desist letter on July 22, 2016 and put Respondent on notice of this dispute. All continued use of the Disputed Domain Name following that date is not bona fide use. Furthermore, Respondent’s offering for sale of holistic dietary products and supplements on the TTAC Store Website, even within its first three months of operation was not a bona fide offering of goods, because from the outset, Respondent was intentionally trading on Complainant’s reputation in the market place and taking advantage of the goodwill in the TTAC Mark. This conclusion is supported by the fact that the TTAC Website predates the Disputed Domain Name’s registration date by approximately two years and, as a self-identified cancer patient, in the context of these proceedings, Respondent was undoubtedly aware of the TTAC Website prior to this dispute.
Complainant further argues with respect to the second prima facie factor, Respondent is not commonly known by the Disputed Domain Name, and business record searches conducted by Complainant indicate that Respondent has no registered business name in connection with the Disputed Domain Name. Respondent also does not have a license from or other relationship with Complainant that would authorize Respondent to use the TTAC Mark in the Disputed Domain Name.
Complainant further argues with respect to the third prima facie factor, Respondent also is not using the Disputed Domain Name for the purpose of criticism or informational content, or otherwise making only legitimate noncommercial or fair use of the Disputed Domain Name. To the contrary, Respondent’s use of the Disputed Domain Name in connection with the retail-focused TTAC Store Website is purely for commercial gain.
The Panel finds that Complainant has made a prima facie showing under paragraph 4(a)(ii) and that Respondent has not adequately asserted any rights or interests in the Disputed Domain Name.
Therefore, the Panel finds that Complainant has met the elements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of paragraph 4(a)(iii) the Policy.
The Policy paragraph 4(b) sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of domain names:
(i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the TTAC Mark or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Name; or
(ii) you [Respondent] have registered the Disputed Domain Name in order to prevent the owner of the TTAC Mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you [Respondent] have registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Disputed Domain Name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the TTAC Mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product.
Complainant alleges that Respondent registered and is using the Disputed Domain Name in a clear bad faith attempt to free ride on the commercial success and consumer goodwill that Complainant has developed in the TTAC Mark and the TTAC Website. Complainant launched the TTAC Website in 2014 and immediately began to attract a large following. Respondent unquestionably was aware of the TTAC Website both when he registered the Disputed Domain Name on April 28, 2016, and when he launched the TTAC Store Website very shortly thereafter. By his registration and use of the Disputed Domain Name it is evident that Respondent was attempting (successfully) to create a false association between the TTAC Store Website and the TTAC Website, to fraudulently attract to the TTAC Store Website consumers who mistakenly believed that it was affiliated with Complainant and the TTAC Website, and to induce those confused consumers to purchase goods from the TTAC Store Website. Respondent’s conduct, taken entirely for person financial gain, is clearly bad faith, in violation of paragraph 4(b)(iv) of the Policy.
Respondent has not contested Complainant’s allegations that Respondent is engaging in commercial activity or that Respondent has used the title “The Truth About Cancer” on its TTAC Store Website and directed users from its TTAC Store Website to the TTAC Website. Nor has Respondent contested Complainant’s allegations that Respondent knew of Complainant and the TTAC Website when Respondent launched its TTAC Store Website.
Based upon this evidence, the Panel finds that Complainant has demonstrated the elements required by paragraph 4(b)(iv) of the Policy and that Respondent has registered and used the Disputed Domain Name in bad faith pursuant to paragraph 4(a)(iii) 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.
Richard W. Page
Sole Panelist
Date: July 17, 2017
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