Complainant is Vitadrip IP LLC, United States of America (“United States”) (hereinafter “Complainant”), represented by Brown Patent Law, PLLC, United States.
Respondent is Registration Private, Domains By Proxy, LLC, United States / Kamilla Voznuk, United States (hereinafter “Respondent”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2021. On October 11, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 12, 2021, 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 October 21, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on October 27, 2021. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amended Complaint on October 29, 2021.
The Center verified that the Complaint together with the amended Complaints (hereinafter 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 October 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 18, 2021. On October 29, 2021, Respondent sent an informal communication. On November 1, 2021, the Center informed the Parties of the possibility to suspend the proceedings. No suspension request has been received from Complainant.
Respondent did not submit any formal response. Accordingly, the Center notified the Parties that it will proceed to Panel appointment.
The Center appointed Donahey, M. Scott as the sole panelist in this matter on November 26, 2021. 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 BackgroundComplainant is a company engaged in the business of producing and marketing vitamin based products and supplements, and nutritional and medical licensing, advertising in all of the fifty United States. Complainant or its predecessors have used the VITADRIP trademark and name since January of 2017. On January 23, 2017, Complainant’s predecessors obtained the
On June 27, 2020, Respondent incorporated a business under the name Vitadrip Hydration LLC in the state of Maryland. Complaint, Annex 14. On October 16, 2020, Respondent incorporated a business under the name Vitadrip LLC in Virginia. Annex 13. On November 12, 2020, Respondent registered the disputed domain name. Complaint, Annexes 1 and 2. In January 2021, Respondent began using the disputed domain name to resolve to a website that offers services and products identical to those offered by Complainant. Complaint, Annexes 3 and 8. Respondent calls itself VITADRIP Leesburg. Complaint, Annexes 6 and 7. Complainant has sent Respondent an email notifying Respondent that it objects to its use of Complainant’s registered trademark. Complaint, Annex 11.
5. Parties’ Contentions A. ComplainantComplainant asserts that the disputed domain name is confusingly similar to Complainant’s registered trademarks. Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant contends that Respondent has registered and is using the disputed domain name in bad faith.
B. RespondentRespondent did not reply formally to Complainant’s contentions.
On October 29, 2021, the Respondent said: “I would like to suspend the present dispute to explore settlement talks.”
6. Discussion and Findings“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 the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe disputed domain name consists of Complainant’s registered trademark preceded by the English word “go”. The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark which has been previously used on Complainant’s website and in Complainant’s domain names.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithRespondent registered the disputed domain name after Complainant had registered the VITADRIP trademark and used it in domain names to resolve to its business in providing medical products, services, and clothing which used its registered trademark. Respondent uses Complainant’s mark in its business name. Complaint, Annex 6. Complainant’s offers products and services offered by Complainant. Complainant has objected to Respondent’s use of Complainant’s VITADRIP trademark in Respondent’s name, and business on the Internet. Respondent continues it its infringing use. Accordingly, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith.
7. DecisionFor 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
Scott Donahey
Sole Panelist
Date: December 2, 2021