Freestyleglucosemeter.com

The timeline behind freestyleglucosemeter.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Abbott Laboratories and Abbott Diabetes Care, Inc. v. Keyword Marketing, Inc. Claim Number: FA0803001157276 PARTIES Complainant is Abbott Laboratories and Abbott Diabeters Care, Inc. (collectively, “Complainant”), represented by Molly Buck Richard, of Richard Law Group, Inc., Texas, USA. Respondent is Keyword Marketing, Inc. (“Respondent”), West Indies. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <freestyleglucosemeter.com>, registered with Belgiumdomains, LLC. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Bruce E. Meyerson as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 6, 2008; the National Arbitration Forum received a hard copy of the Complaint on March 7, 2008. On March 10, 2008, Belgiumdomains, LLC confirmed by e-mail to the National Arbitration Forum that the <freestyleglucosemeter.com> domain name is registered with Belgiumdomains, LLC and that Respondent is the current registrant of the name. Belgiumdomains, LLC has verified that Respondent is bound by the Belgiumdomains, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On March 11, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 31, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@freestyleglucosemeter.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 7, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <freestyleglucosemeter.com> domain name is confusingly similar to Complainant’s FREESTYLE mark. 2. Respondent does not have any rights or legitimate interests in the <freestyleglucosemeter.com> domain name. 3. Respondent registered and used the <freestyleglucosemeter.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant is comprised of Abbott Laboratories and its subsidiary Abbott Diabetes Care, Inc. Complainant provides a variety of medical goods and services. As part of this business, Complainant offers glucose meters under its FREESTYLE mark. Complainant first registered its FREESTYLE mark with the United States Patent and Trademark Office (“USPTO”) on January 7, 2003 (Reg. No. 2,670,744). Respondent registered the <freestyleglucosemeter.com> domain name on December 15, 2005. Respondent’s domain name resolves to a website which displays links to competing medical goods and services. Respondent presumably receives payment for displaying these links on its website resolving from the <freestyleglucosemeter.com> domain name. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) 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. Identical and/or Confusingly Similar Complainant registered its FREESTYLE mark with the USPTO. The Panel finds this sufficiently establishes Complainant’s rights in its FREESTYLE mark pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Inertia 3D, FA 1118154 (Nat. Arb. Forum Jan. 18, 2008) (“Complainant asserts rights in the mark through its registration of the mark with the United States Patent and Trademark Office. This registration sufficiently establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”). Respondent’s <freestyleglucosemeter.com> domain name contains Complainant’s FREESTYLE mark with the addition of the descriptive phrase “glucose meter,” which describes one of the products Complainant offers under its FREESTYLE mark, and therefore does not make the domain name sufficiently different from Complainant’s mark within the meaning of Policy ¶ 4(a)(i). See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). Moreover, the generic top-level (“gTLD”) “.com,” is not relevant in evaluating whether a disputed domain name is confusingly similar to a mark. Therefore, the Panel finds Respondent’s <freestyleglucosemeter.com> domain name is confusingly similar to Complainant’s FREESTYLE mark pursuant to Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant has alleged Respondent does not possess rights or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these allegations before the burden shifts to Respondent to prove it does have rights or legitimate interests in the disputed domain name. The Panel finds Complainant has presented an adequate prima facie case to support its allegations and the Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent does not possess rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). The Panel, however, will examine the record and determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). Respondent’s <freestyleglucosemeter.com> domain name resolves to a website which displays links to medical products and services that directly compete with Complainant’s business. The Panel finds this use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name). Also, Respondent does not appear to be commonly known by the <freestyleglucosemeter.com> domain name. The WHOIS information indicates Respondent is identified as “Keyword Marketing, Inc.” Additionally, the record does not indicate Respondent sought or was granted authorization to use Complainant’s FREESTYLE mark. Therefore, the Panel find Respondent is not commonly known by the <freestyleglucosemeter.com> domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected). The Panel finds Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent’s website resolving from the disputed domain name displays links to third-party websites which directly compete with Complainant’s business. The Panel finds Respondent’s use constitutes disruption and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). Respondent is using the website resolving from its confusingly similar disputed domain name to display links to medical products and services which compete with Complainant’s business. Respondent presumably receives compensation for this use. Additionally, Respondent’s use of Complainant’s FREESTYLE mark creates a likelihood of confusion regarding the affiliation of Complainant with the third-party websites. The Panel finds this is an attempt by Respondent to profit from the goodwill associated with Complainant’s mark. Therefore, the Panel finds Respondent’s actions constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain). The Panel finds Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <freestyleglucosemeter.com> domain name be TRANSFERRED from Respondent to Complainant. Bruce E. Meyerson, Panelist Dated: April 16, 2008 Click Here to return to the main Domain Decisions Page. 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Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.