SportsPharma USA, Inc. v. iNetSOurces
[Indexed as: SportsPharma v. iNetSOurces]
[Indexed as: sportspharma.com]
National Arbitration Forum
Case No.: FA0005000094922
Commenced: 5 June 2000
Judgement: 11 July 2000
Presiding Panelist: Carolyn Marks Johnson
Domain name Domain name dispute resolution policy Trademark Identical Legitimate rights Bad faith.
Complainant owns the mark Sportpharma, and uses the website sportpharma.com to sell nutritional supplements on the Internet. Respondent registered the domain name sportspharma.com. This site redirected users to another site which also sells nutritional supplements.
Held, Name Transferred to Complainant.
Respondents mark is confusingly similar to the mark to which Complainant has rights. Respondent has attempted to create confusion as to the location of Respondents website and the affiliation of the products advertised on Respondents site.
Respondent is not commonly known by the name, and instead is using the name to offer services which are in competition with Complainant. It is clear that Respondent seeks to profit from the registration. Thus, Respondent has no rights to the name.
Respondent was aware of the confusion that would result between the two sites. This awareness and the intention to attract Internet users to a third partys site for profit infers bad faith.
Policies referred to
Uniform Domain Name Dispute Resolution Policy
Panel decisions referred to
America Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA93679 (Nat. Arb. Forum March 15, 2000).
Cunard Line Ltd. v. Champion Travel, Inc., FA92053 (Nat. Arb. Forum Mar. 7, 2000).
Hewlett-Packard Company v. Full System, FA94637 (Nat. Arb. Forum May 22, 2000).
Mariah Boats, Inc. v. Shoreline Marina, FA94392 (Nat. Arb. Forum May 5, 2000).
Johnson, Panelist: -
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is SPORTSPHARMA.COM, registered with
Network Solutions, Inc. (NSI).
PANELIST
Honorable Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(The
Forum) electronically on 05/30/2000; The Forum received a hard copy
of the
Complaint on 05/30/2000.
On 05/31/2000, NSI confirmed by e-mail to The Forum that the domain
name
SPORTSPHARMA.COM is registered with NSI and that the Respondent is
the
current registrant of the name. NSI has verified that Respondent
is bound by the
Network Solutions Service Agreement Version 4.0 and has thereby agreed
to
resolve domain-name disputes brought by third parties in accordance
with
ICANNs UDRP.
On 06/05/2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the Commencement Notification), setting a deadline of
06/26/2000
by which Respondent could file a Response to the Complaint, was transmitted
to
Respondent via email, post and fax, and to all entities and persons
listed on
Respondents registration as technical, administrative and billing
contacts by email.
On 06/26/2000, having received no Response from Respondent, using the
same
contact details and methods as were used for the Commencement Notification,
The
Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2000, pursuant to Complainants request to have the dispute
decided
by a Single Member panel, The Forum appointed Honorable Carolyn Marks
Johnson as Panelist.
Having reviewed the communications records in the case file, the Administrative
Panel (the Panel) finds that The Forum has discharged its responsibility
under
Paragraph 2(a) of the Uniform Rules to employ reasonably available
means
calculated to achieve actual notice to Respondent. Therefore, the
Panel may issue
its Decision based on the documents submitted and in accordance with
the
ICANN Policy, ICANN Rules, The Forums Supplemental Rules and any rules
and principles of law that the panel deems applicable, without the
benefit of any
Response from the Respondent.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the
Respondent to the Complainant.
PARTIES CONTENTIONS
A. Complainant
The Complainant contends that the Respondent has registered a domain
name that
is confusingly similar to its trademark registered for and in use by
the Complainant.
Further, the Complainant contends that the Respondent has no rights
or legitimate
interests to the domain name, and that the respondent has registered
and is using
the domain name in bad faith.
B. Respondent
The Respondent submitted no response in this matter.
FINDINGS
The Complainant owns the United States trademark SPORTPHARMA (filed
5/16/1994; registered 08/15/1995; No. 1,911,037) for nutritional supplements.
The Complainant uses the website <sportpharma.com> to sell its products
on the
Internet.
The Respondent registered the website <sportspharma.com> on 09/23/2000.
The Complainant sent a letter to the Respondent on May 8, 2000 informing
the
Respondent of the likelihood of confusion between the two domain names.
At the
time of the letter, the Respondents site redirected users to the site,
www.ppfn.com, which is a retailer of nutritional supplements, including
those
supplements manufactured by the Complainant.
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy (Policy)
directs that the complainant must prove each of the following three
elements to
support a claim that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly
similar
to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect
of the domain
name; and
(3) the domain name has been registered and is being used in bad faith.
The Complainant has offered exhibits in support of its claims, whereas
the
Respondent has submitted no response in the matter. The Respondents
failure to
dispute the allegations of the Complainant permits the inference that
the
Complainants allegations are true. Further, the Respondents
failure to respond
permits the inference that the Respondent knows that its website is
misleading and
is intentionally diverting business from the Complainant. See
Hewlett-Packard
Company v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000).
Applying the Policy to the issue in this case furthers these inferences.
Identical and/or Confusingly Similar
Complainant has rights in the mark SPORTSPHARMA.COM.
The Respondents mark is confusingly similar to the Complainants mark.
Respondent has simply added an S after the word sport. By
infringing upon
the Complainants marks, the Respondent is attempting to create confusion
as to
the location of the Respondents website and the affiliation of the
products
advertised on the Respondents website. See America Online, Inc.
v. Avrasya
Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum March 15, 2000)
(holding that the Respondents domain name, <americanonline.com>,
and the
Complainants domain name, <americaonline.com>, were confusingly
similar).
Rights or Legitimate Interests
The Respondent does not assert any rights or legitimate interests to
the domain
name in question.
The name does not reflect a name by which the Respondent is commonly
known.
Policy 4(c)(ii). Rather, the Respondent is using a portion
of the Complainants
registered and well-known mark to offer competing services.
The Panel finds that the Respondent is not using the domain name in
connection
with a bona fide offering of goods and services nor is making a legitimate
noncommercial or fair use of the site. Policy 4(c)(I),
(iii). Instead, the Respondent
seeks to profit from its registration of said domain name by offering
competing
services and trading upon the image associated with the Sportpharma
name. Policy
4(c)(I), (iii). See Cunard Line Ltd. v. Champion Travel,
Inc., FA 92053 (Nat.
Arb. Forum Mar. 7, 2000) (finding that the Respondent had no rights
or legitimate
interests in the domain name <cunardcruise.com>).
For these reasons, the panel finds that the Respondent has no rights
or legitimate
interests in the domain name.
Bad Faith
The Respondent does not deny that its actions were taken in bad faith.
The Respondent registered and is using the domain name in question to
intentionally
attract Internet users to a third partys website for its commercial
gain. Policy
4(b)(iv). When Internet users are linked to the third partys site,
they cannot know
that they are not on the official Sportpharma website. Based on the
Complainants well-known trademark, the Respondent knew that confusion
between the two websites would result. The Complainant would
lose customers
and business would be disrupted as a result of the Respondents infringing
website.
Policy 4(b)(iii). See Mariah Boats, Inc. v. Shoreline Marina,
FA 94392 (Nat.
Arb. Forum May 5, 2000).
Based on the preceding facts, the panel finds that the Respondent registered
and is
using the domain name in bad faith.
DECISION
Having established all three elements required by the ICANN Policy Rule
4(a), it is
the decision of the panel that the requested relief be granted.
Accordingly, for all of the foregoing reasons, it is ordered that the
domain name,
SPORTSPHARMA.COM be transferred from the Respondent to the
Complainant.
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