WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amway Corporation, Inc. v. Business Internet Connection and Rex Mehta
Case No. D2000-1118
1. The Parties
The Complainant in this administrative proceeding is Amway Corporation, Inc. (Amway), a corporation organized under the laws of the State of Michigan, having a principal place of business in Ada, Michigan, U.S.A. Respondent Business Internet Connection is the listed Registrant of the disputed domain name. Its postal address is 3365 E. Miraloma Ave. #200, Anaheim, California 92806 U.S.A. Respondent Rex Mehta is the listed Administrative Contact for the domain name in dispute. His postal address is 25131 Barents, Laguna Hills, California 92653 U.S.A.
2. The Domain Name and Registrar
The domain name in dispute is as follows: "amwayindia.com". The domain name was registered by Respondent with Network Solutions, Inc. (NSI) on February 9, 1998.
3. Procedural Background
On August 24, 2000, the WIPO Arbitration and Mediation Center received from Complainant a complaint for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation of Assigned Names and Numbers (ICANN) on August 26, 1999 ("Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules). Payment was properly made, the administrative panel was properly constituted, and the panelist submitted the required Statement of Acceptance and Declaration of Impartiality and Independence.
The Complaint was amended on September 29, 2000, to clarify the name of one of the Respondents and was amended again on October 3, 2000, in accordance with ¶3(b)(xiii) of the Rules, with respect to the language found in ¶13 of the Complaint pertaining to submitting to jurisdiction to any challenge to the Panel's decision canceling or transferring the domain name.
The instant Administrative Proceeding was commenced on October 4, 2000.
Respondent filed a Response, which was received by WIPO on October 23, 2000.
The decision of the Panel was due to WIPO on or before November 26, 2000.
4. Factual Background
Complainant Amway was founded in 1959 and has become one of the world's largest direct selling companies. The Amway business opportunity is supported by more than 450 personal care, nutrition and wellness; home care, home living and commercial AMWAY branded products. The business started first in the United States and is now operating in over 80 countries and territories, including India. Amway India Enterprises, a wholly owned subsidiary of Amway, was established in August 1995.
Amway owns over 100 U.S. Trademark Registrations and 2700 international registrations, in over 100 countries, including India, for marks that include the term AMWAY. See Complaint, Exhibits 4 and 5. Amway also owns over 200 generic top level domain names and 50 country code top level domain names that include the AMWAY mark in the domain name, including amway.com and amway-in.com.
As noted above, the domain name in dispute was registered with NSI on February 9, 1998. The domain name amwayindia.com links to a multi-page, active website. The current home page includes a letter from "Rishi Mehta" that attempts to describe the Amway business opportunity. See Complaint, Exhibit 6. The home page also contains several links, including a link to an internal page, purportedly for use in joining Amway, and a link to dollarstore.com, which is described on the home page as being "the Internet's number one general store." A variety of products, many of which are also sold by Amway, are sold at the dollarstore.com website. Respondent Mehta is listed as the President of Dollarstore.com Inc. See Complaint, Exhibit 8.
Amway first contacted Mr. Mehta in April 1998 to request information on the use of the disputed domain name. See Complaint, Exhibit 10. Mr. Mehta responded via fax indicating that "The whole purpose of this site is that I am offering fellow Indians an opportunity to help themselves into Amway business." Mr. Mehta further indicated that "I am not looking for any kind of endorsement from Amway. You can take a stand that it is not an Amway official site and you have no control over it. I will write a disclaimer to that effect on the site. If you wish I will be glad to share the information I collect from this site." See Complaint, Exhibit 11. (A disclaimer was placed on the bottom of the home page of the amwayindia.com website some time after July 12, 2000.)
In response to Mr. Mehta's fax, Amway sent a letter on April 20, 1998, outlining its concerns with the amwayindia.com website. See Complaint, Exhibit 12. Mr. Mehta did not respond to this letter, and subsequent letters (see Complaint, Exhibits 15 and 16) were not answered.
5. Parties' Contentions
Complainant contends that the domain name in issue is confusingly similar to its AMWAY mark, in that it includes the mark in its totality with the addition of a geographic descriptive term and the .com extension.
Complainant further asserts that Respondents do not have rights or legitimate interests in the disputed domain name. According to Complainant, Respondents do not use or have not demonstrated an intent to use the domain name in connection with a bona fide offering of goods or services. Rather, Amway argues, Respondents merely appear to offer a lead gathering service in which Respondents acquire information about persons who complete the form. Complainant also contends that Respondents have not been commonly known by the disputed domain name and that their use of the name is clearly commercial in nature in that they are using the amwayindia.com website to gather information designed to further their Internet support businesses and to provide a link to the dollarstore.com competitive website.
With respect to the issue of "bad faith" registration and use, Complainant argues that Respondents have intentionally attempted to attract, for commercial gain, Internet users to their website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of their website or location or of a product or service on their website or location. Complainant also argues that the domain name has been registered primarily for the purpose of disrupting the business of a competitor.
The Response contends that the dispute is not subject to Mandatory Administrative Proceedings because: (1) The name "Amway India" is not the subject of a federal trademark owned by Amway; (2) Rex Mehta is an Independent Business Operator (IBO) of Amway who registered the domain name in dispute to promote Amway's business in India; and (3) Respondents are not in competition with Amway. In its Complaint, Amway argues that, even if Respondents are authorized Amway IBOs who have the right to sell AMWAY products, they do not have the right to use the AMWAY mark in a domain name that is used to attract Internet users to their website where these products are sold. This prohibition, according to Amway, is part of the contract all IBOs must enter into.
6. Discussion and Findings
The Panel has carefully weighed the evidence presented and determines that Complainant has met the requirements set forth in ¶4.a. of the Policy.
The Panel finds that the domain name is confusingly similar to a trademark in which Amway has rights. The disputed domain name includes the well-known and distinctive AMWAY mark in its totality. The addition of the geographic term "India" and the ".com" suffix does not avoid a finding of confusing similarity. These terms have little, if any, trademark significance. See Cellular One Group v. Paul Brien (WIPO Case D2000-0028) (domain name cellularonechina.com held confusingly similar to mark CELLULARONE).
It is also clear, as a result of its long use and ownership of registrations throughout the world, that Complainant has rights in the AMWAY mark. While Complainant may not own a registration for the term "Amway India", its rights in the AMWAY mark extend to terms which are confusingly similar to it, such as "amwayindia.com".
The Panel further finds that Respondents have no rights or legitimate interests in the domain name. The Panel has carefully reviewed Respondents' website and concludes that no goods or services are offered under the amwayindia.com domain name, within the meaning of ¶4.c.(i) of the Policy. Instead, it appears that this site merely provides information regarding Complainant and seeks information from those interested in "joining" Amway.
The Panel further concludes that ¶4.c.(iii) of the Policy is not applicable either. This is because Respondents' website contains a link to the dollarstore.com site, at which Respondents offer for sale goods that Complainant also sells. In the Panel's view, under these circumstances, it cannot be held that Respondents are making a "legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers."
While Mr. Mehta contends that he is an IBO of Amway and, thus, authorized to sell Amway goods, Complainant asserts that, even if such is true, Mr. Mehta is not authorized to use the AMWAY mark in a domain name. Based on this unrebutted assertion, the Panel concludes that Mr. Mehta's status as an Amway IBO does not provide him "rights or legitimate interests" in the domain name.
With respect to the "bad faith" issue, the Panel agrees with Complainant that Respondents registered the domain name "primarily for the purpose of disrupting the business of a competitor," within the meaning of ¶4.b.(iii) of the Policy. Though Mr. Mehta argues that he is not a competitor of Amway, since his site only sells Amway products, to the extent that competing products are sold at the dollarstore.com website, Respondents may be considered competitors of Amway.
The Panel agrees with Complainant that ¶4.b.(iv) of the Policy also is applicable. By using the disputed domain name, Respondents have intentionally attempted to attract, for commercial gain, Internet users to their website or other on-line location (i.e., the dollarstore.com site), by creating a likelihood of confusion with the AMWAY mark as to the source, sponsorship, affiliation or endorsement of the site or of a product or service on the site.
In view of the above, the Panel GRANTS Complainant's request for transfer to it of the domain name "amwayindia.com".
Jeffrey M. Samuels
Dated: November 26, 2000