Complainant is Comvita Limited, Comvita New Zealand Limited, New Zealand, represented by AJ Park Law Limited, New Zealand.
Respondent is Dr. Ehab Hammouda, Advancis Medipharma Group LLC, United Arab Emirates.
2. The Domain Name and RegistrarThe disputed domain names
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 22, 2021 with respect to the Domain Name
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 November 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2021. On November 29, 2021, the Complainant submitted an amended Complaint and requested to add the Domain Name
The Center appointed Robert A. Badgley as the sole panelist in this matter on December 13, 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.
On December 27, 2021, the Panel issued a Panel Order requesting the Registrar to provide the contact details of the registrant in connection with the Domain Name
On December 28, 2021, the Registrar transmitted by email to the Center its verification for the Domain Name
On January 12, 2022, the Panel issued a second Panel Order giving Respondent time to comment on the addition of the domain name
The Complaint contains the following description of Complainant and its business:
Complainant, Comvita, was formed in New Zealand in 1974 by Claude Stratford and Alan Bougen. Together, they had a vision of connecting people to nature and good health. Today, Complainant continues that vision by researching and selecting sources of natural ingredients, carefully tending and harvesting them to preserve their purity. As a result, Complainant has grown to become an internationally renowned natural health products company committed to the development of innovative natural health and wellbeing products, backed by credible scientific research. It sells its products into more than 50 countries and has 552 staff in New Zealand, Australia, the United Kingdom, United States, China, Republic of Korea, Japan, and Hong Kong, China.
A key natural ingredient for Complainant is Manuka Honey. Complainant works closely with its beekeepers to produce a range of Manuka Honey products and is now the world’s largest producer of Manuka Honey.
Complainant owns numerous trademark registrations throughout the world for the trademark COMVITA, including several registrations dating back to August 2006 in the United Arab Emirates, Respondent’s country.
Complainant operates a commercial website at “www.comvita.co.nz”, a domain name it has owned since October 1996. Complainant holds many other COMVITA-formative domain names, which resolve to its main site.
The Domain Name
The Domain Names resolve to a website at “www.fortavita.com”, at which a variety of natural healthcare products are offered for sale under the purported brand “Forta Vita.” The products advertised at the website are alleged to originate in New Zealand. In addition, this website states that Forta Vita incorporates Manuka Honey into its products.
Complainant alleges that Respondent controls this website. That allegation has not been denied in this record.
On October 4, 2021, Complainant’s counsel sent Respondent a cease-and-desist letter in connection with the Domain Name
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Names.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the Domain Names:
(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 and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel concludes that Complainant has rights in the trademark COMVITA through registration and use demonstrated in the record. The Panel also concludes that the Domain Names are identical to that mark.
Complainant has established Policy paragraph 4(a)(i).
B. Rights or Legitimate InterestsFor each of the Domain Names, pursuant to paragraph 4(c) of the Policy, Respondent may establish its 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.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Names. Respondent did not try to articulate or prove, either in response to the Complaint in this proceeding or in response to Complainant’s previous cease-and-desist letter, any legitimate interest it may have in regard to these Domain Names. It is undisputed that Complainant has no relationship with Respondent, and Complainant has never authorized Respondent to use the COMVITA trademark in a domain name or otherwise.
It is also clear from this undisputed record that Respondent is operating a website that sells products purportedly similar to Complainant’s products, and that Respondent is attempting to increase its Internet traffic and product sales by impersonating Complainant (or at least suggesting some type of association with Complainant), by means of using the COMVITA mark in the Domain Names, and emphasizing that the products come from New Zealand and contain Manuka Honey. Such conduct is plainly not legitimate, and, indeed, is in bad faith.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad FaithFor each of the Domain Names, paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Names in “bad faith”:
(i) circumstances indicating that Respondent has registered or has 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 its documented out of pocket costs directly related to the Domain Name; or
(ii) that 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) that 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 website 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.
The Panel concludes that Respondent has registered and used the Domain Names in bad faith. The Panel incorporates its discussion above in the “rights or legitimate interests” section. The Panel finds it fairly obvious that Respondent – apparently a seller of natural health products with Manuka Honey and coming from New Zealand – was aware of Complainant’s widely registered COMVITA mark when it registered the first Domain name on July 24, 2021. It is even more obvious that it was aware of the COMVITA mark when, after receiving the cease-and-desist letter and then the initial Complaint in this proceeding, it went on to register the second Domain Name at issue on November 3, 2021. Respondent was clearly targeting Complainant’s trademark.
The Panel finds bad faith under the above-quoted Policy paragraphs 4(b)(iii) and 4(b)(iv).
Complainant has established Policy paragraph 4(a)(iii).
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names
Robert A. Badgley
Sole Panelist
Date: January 17, 2022