Complainant is Valent BioSciences LLC, United States of America (“United States”), represented by Partridge Partners PC, United States.
Respondent is Jeffrey Unrein, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2019. On November 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 28, 2019, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. 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 December 2, 2019. On December 4, 2019, Respondent sent the Standard Settlement Form signed. On December 5, 2019, the Center sent the possible settlement email to the Parties, but no request for suspension was received from the Complainant. On December 20, 2019, Respondent sent an email communication to the Center, stating it did not receive any reply or confirmation that the Center has received the settlement form. On December 23, 2019, the Center confirmed to Respondent that the signed settlement form had been received, but that the suspension of the proceeding had not been requested by Complainant. In accordance with the Rules, paragraph 5, the due date for Response was December 22, 2019. Respondent did not submit any formal response. Accordingly, the Center notified the Commencement of Panel Appointment Process on December 23, 2019. The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on January 9, 2020. 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 involved in biotechnology research, development and commercialization of environmentally compatible technologies and products for the agricultural, public health, forestry, and household markets. Complainant develops “biorational” products to create value and solve problems for customers around the world. These products include environmentally compatible bioinsecticides and plant growth regulators that are naturally occurring or chemically derived. Complainant, through its predecessors-in-interest and affiliates under common ownership and control, has been using the GNATROL trademark continuously in commerce since April 25, 1989. Complainant is the owner of the following trademark registrations for the mark GNATROL for use in connection with insecticides and larvicides: United States Registration No. 1572857 registered December 26, 1989 Complainant submits that the GNATROL product is an EPA-registered pesticide; the Federal Insecticide, fungicide and Rodenticide Act requires the production of such products in EPA-registered establishments (“production” includes repackaging and relabeling (40 CFR 167.3). 7 USC Section 136e. The disputed domain name was registered on April 18, 2018. It resolves to a website selling goods competing with Complainant’s products. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s GNATROL mark, that Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith. B. Respondent Except insofar as it sent a signed standard settlement form, Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied: (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 with respect to the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. Paragraph 15(a) of the Rules instructs the Panel to 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”. A. Identical or Confusingly Similar Complainant has demonstrated that it has rights in the trademark GNATROL used in connection with insecticides, larvicides, and the research and development of such products. The disputed domain name incorporates Complainant’s mark in its entirety. The addition of the Top-Level Domain “.com” in the disputed domain name adds no distinguishing feature. Accordingly, the Panel finds that the disputed domain name is identical and confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests Complainant contends that Respondent is not affiliated with or connected to Complainant in any way. Respondent is not licensed by Complainant or otherwise authorized to use the GNATROL mark. Complainant has not consented to Respondent’s use of Complainant’s trademark. Complainant has no relationship with Respondent that could give rise to any implied license, permission or other right for Respondent to use Complainant’s mark in the disputed domain name. Respondent is not commonly known by the disputed domain name. There is no evidence in the record that Respondent has any rights in the GNATROL mark. Respondent has not made, and is not making, a legitimate noncommercial or fair use of the disputed domain name. Respondent is using the disputed domain name to promote and sell the products of Complainant’s competitors. In doing so, Respondent has used infringing content taken from Complainant’s website. This conduct shows Respondent’s commercial use and intent to unfairly profit from Complainant’s trademark by falsely suggesting an affiliation with Complainant. Based on the pictures featured on the website at the disputed domain name, on the face of it, Respondent appears to be repackaging GNATROL products in smaller containers. Complainant contends that Respondent is not following the many regulations associated with repackaging GNATROL products. The record shows that Respondent has not used the disputed domain name in connection with the bona fide offering of goods or services. The Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Respondent knew or should have known that its registration of the disputed domain name would be identical or confusingly similar to Complainant’s mark. The record shows that Respondent was aware of Complainant’s mark based on the content at Respondent’s website taken from Complainant’s website. Complainant has used the GNATROL mark for approximately 30 years. Respondent registered the disputed domain name in April 2018, 29 years after Complainant first used the mark GNATROL. A simple search would have shown Complainant’s extensive rights in the GNATROL mark. Based on the evidence of record, it is inconceivable that Respondent was unaware of Complainant’s mark at the time Respondent registered the disputed domain name. The record also indicates Respondent’s bad faith registration and use of the disputed domain name. There is no legitimate reason for Respondent’s selection and use of the disputed domain name other than to deliberately profit from confusing Internet users with Complainant’s GNATROL mark. Respondent’s website promotes and sells products of Complainant’s competitors. The evidence of record shows that Respondent’s primary intention was to specifically target Complainant’s reputation and trademarks for commercial gain. Accordingly, the Panel finds that Respondent has registered and used the disputed domain name in bad faith. 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 Lynda J. Zadra-Symes
European Union TM Registration No. EU010275031 registered March 9, 2012
Sole Panelist
Date: January 22, 2020
Full & Egal Universal Law Academy