Doctorsnutritionamerica.com

The timeline behind doctorsnutritionamerica.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 Doctor's Nutrition, LLC v. GKG.NET Domain Proxy Service Administrator / GKG.NET Domain Proxy Service Claim Number: FA1402001542479 PARTIES Complainant is Doctor's Nutrition, LLC (“Complainant”), represented by Stephen J. Carmody of Bninini Law Firm, Mississippi, USA. Respondent is GKG.NET Domain Proxy Service Administrator / GKG.NET Domain Proxy Service (“Respondent”), Texas, USA. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <doctorsnutritionamerica.com>, registered with GKG.NET, INC. 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. Darryl C. Wilson, as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on February 6, 2014; the National Arbitration Forum received payment on February 10, 2014. On February 7, 2014, GKG.NET, INC. confirmed by e-mail to the National Arbitration Forum that the <doctorsnutritionamerica.com> domain name is registered with GKG.NET, INC. and that Respondent is the current registrant of the name. GKG.NET, INC. has verified that Respondent is bound by the GKG.NET, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On February 14, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@doctorsnutritionamerica.com. Also on February 14, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. Complainant submitted an Additional Submission, which the National Arbitration Forum found to be compliant and timely on March 11, 2014. On March 12, 2014 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 Policy ¶ 4(a)(i) Complainant has used the DOCTOR’S NUTRITION mark to market and sell dietary supplements since 1997. Complainant has protected its use of the DOCTOR’S NUTRITION mark through a United States Patent and Trademark Office ("USPTO") trademark registration (Reg. No. 3,942,588 registered Apr. 12, 2011). Respondent’s <doctorsnutritionamerica.com> domain name is confusingly similar to Complainant’s mark because the domain name merely removes an apostrophe and adds the geographic term “america.” Policy ¶ 4(a)(ii) Respondent has never done business under a name similar to the <doctorsnutritionamerica.com> domain name, nor has Complainant licensed Respondent to use the DOCTOR’S NUTRITION mark in domain names. Respondent lists itself in the WHOIS information as “GKG” while the business hosted through the domain name is owned by “Bailey Health & Wellness Center.” Respondent is allegedly leasing the <doctorsnutritionamerica.com> domain name to Bailey Health & Wellness Center of Texas. The <doctorsnutritionamerica.com> domain name is being used to promote and sell competing dietary supplements. Policy ¶ 4(a)(iii) Respondent is intending to create a likelihood of confusion amongst Internet users as to the source, sponsorship, affiliation, or endorsement between Complainant and Respondent with regards to the competing goods sold through the disputed domain name. Respondent was fully aware of its infringement of the DOCTOR’S NUTRITION mark. B. Respondent Respondent failed to submit a Response in this proceeding. C. Additional Submissions Complainant timely filed an Additional Submission on March 11, 2014, which provided additional documentary evidence, specifically; 1. Doctor’s Nutrition 1999 submission to the United States Patent & Trademark office reflecting Doctor’s Nutrition’s prior use of its mark. 2. A screen shot of Doctor’s Nutrition’s website, doctorsnutrition.com 3. A screen shot of respondent’s website, doctorsnutritionamerica.com FINDINGS Complainant is Doctor's Nutrition, LLC of Gulfport, MS, USA. Complainant owns USA registrations for a number of DOCTOR’S NUTRITION marks which it uses in connection with service and sale of multi-vitamin preparations, as well as related dietary supplements. Complainant claims to have used the mark(s) continuously since as early as 1997. Complainant also operates in ecommerce at its registered site doctorsnutrition.com. Respondent is GKG.NET Domain Proxy Service Administrator / GKG.NET Domain Proxy Service of Bryan, TX, USA. Respondent’s registrar’s address is identical. Respondent registered the disputed domain name on or about June 16, 2013. 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." 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. 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.”). Identical and/or Confusingly Similar Complainant claims that it has used the DOCTOR’S NUTRITION mark to market and sell dietary supplements since 1997. Complainant has protected its use of the DOCTOR’S NUTRITION mark through a USPTO trademark registration (Reg. No. 3,942,588 registered Apr. 12, 2011). The Panel here finds that USPTO registration is credible evidence of Policy ¶ 4(a)(i) rights. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)). Complainant next argues that Respondent’s <doctorsnutritionamerica.com> domain name is confusingly similar to Complainant’s mark because the domain name merely removes an apostrophe and adds the geographic term “america.” The Panel notes that Respondent creates no distinction by adding the generic top-level domain (“gTLD”) along with the removal of the mark’s spacing and punctuation. See Google Inc. v. Private Person / Andrey Skorodubov, FA 1506184 (Nat. Arb. Forum Jul. 28, 2013) (finding that the disputed domain name is confusingly similar to the complainant’s mark regardless of the omission of a letter and spaces in the mark, the alteration of punctuation, and addition of a gTLD). The Panel further notes that the geographic term “america” does not reduce the confusing similarity of the domain name. See Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”). The Panel here finds that the <doctorsnutritionamerica.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). Respondent makes no contentions with regards to Policy ¶ 4(a)(i). The Complainant has proven this element. Rights or Legitimate Interests The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden. Complainant argues that Respondent has never done business under a name similar to the <doctorsnutritionamerica.com> domain name. Complainant avows that it has not licensed Respondent to use the DOCTOR’S NUTRITION mark in domain names. Complainant claims that Respondent lists itself in the WHOIS information as “GKG,” while the business hosted through the domain name is owned by “Bailey Health & Wellness Center.” The Panel notes that the WHOIS information list a “GKG.NET Domain Proxy Service Administrator / GKG.NET Domain Proxy Service” as the registrant of record. The Panel finds that there is no basis in this record for finding that Respondent has ever been commonly known by the <doctorsnutritionamerica.com> domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name). Complainant further contends that Respondent is allegedly leasing the <doctorsnutritionamerica.com> domain name to Bailey Health & Wellness Center of Texas. Complainant suggests that the <doctorsnutritionamerica.com> domain name is being used to promote and sell competing dietary supplements. Complainant concludes that the sale of competing goods is neither bona fide nor legitimate within the meaning of the Policy. The Panel notes that Complainant provided an Additional Submission in which an image of the <doctorsnutritionamerica.com> domain name’s resolving website indicates the website is used to sell competing dietary and vitamin goods. In Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) the panel found that there was no bona fide offering made through the clearly commercial offering of competitive products. The Panel here finds that Respondent has failed to make a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed domain name when Respondent uses the website to host a business that competes directly with Complainant. Respondent makes no contentions with regards to Policy ¶ 4(a)(ii). Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain. The Complainant has proven this element. Registration and Use in Bad Faith Complainant further argues that Respondent is intending to create a likelihood of confusion amongst Internet users as to the source, sponsorship, affiliation, or endorsement between Complainant and Respondent with regards to the competing goods sold through the disputed domain name. The Panel again notes Complainant’s Additional Submission in which an image of the <doctorsnutritionamerica.com> domain name’s resolving website indicates the website is used to sell competing dietary and vitamin goods. The sale of competing goods through a confusingly similar domain name is a basis for finding a Policy ¶ 4(b)(iv) bad faith intent to profit through a likelihood of confusion. See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)). The Panel here finds that Respondent’s use of the disputed domain name in the fashion noted above evidences registration and use in bad faith. Respondent makes no contentions with regards to Policy ¶ 4(a)(iii). The Complainant has proven this element. DECISION Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED. Accordingly, it is Ordered that the <doctorsnutritionamerica.com> domain name be TRANSFERRED from Respondent to Complainant. Darryl C. Wilson, Panelist Dated: March 25, 2014 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.