WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Nautilus Group, Inc. v. Itrisom.com Ltd
Case No. D2002-1143
1. The Parties
Complainant is The Nautilus Group, Inc., having its principal place of business at 1400 NE 136th Avenue, Vancouver, Washington 98684, United States of America, represented by Keith S. Dubanevitch and Alec S. Shebiel, attorneys from the law firm Garvey, Schubert & Barer, with offices at 121 SW Morrison Street, 11th Floor, Portland, Oregon 97204, United States of America, hereinafter the "Complainant".
Respondent is Itrisom.com Ltd., with offices at Mayfair Apts. B.P Road, Pune, MH 411 001, India, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is <bowflexexercise.com>, hereinafter referred to as the "Domain Name". The registrar is Iholdings.com, Inc. d/b/a Dotregistrar.com (the "Registrar").
3. Procedural History
The WIPO Arbitration and Mediation Center (the "Center") received the Complainantís complaint on December 16, 2002, (electronic version) and December 19, 2002, (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is December 23, 2002.
On December 18, 2002, the Center transmitted via email to the Registrar a request for registrar verification in connection with this case. On December 20, 2002, the Registrar transmitted the Registrar's Verification Response, confirming that the Respondent is the registrant.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted to the Respondent on December 23, 2002, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier and e-mail.
The Center advised that the response was due by January 12, 2003.
Respondent did not submit any response. Accordingly, the Center issued a Notification of Respondent Default on January 15, 2003.
On January 23, 2003, in view of the Complainantís designation of a single panelist, the Center invited M. Geert Glas to serve as a panelist.
Having received on January 23, 2003, M. Geert Glas' Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted, on January 24, 2003, to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Geert Glas was formally appointed as the Sole Panelist. The Projected Decision Date is February 7, 2003. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel will issue its Decision based on the Complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
According to the information found on Complainant's website located at "http://www.nautilusgroup.com", the Complainant, founded in 1986, "is a complete health and fitness company and a leading marketer, developer, and manufacturer of branded health and fitness products with direct, retail, and commercial sales channels worldwide. The Nautilus Group owns some of the most recognized brands in the industry with a portfolio that includes Nautilus, Schwinn, StairMaster, and Bowflex."
"Bowflex is the company's flagship product line of strength training equipment created for convenient use in the home. The Bowflex line has expanded to nine different models, all of which use the proprietary "power rod" resistance technology and are designed to be easily stored and relocated."
According to the information found on the Respondent's website located at http://www.itrisom.com, "ITrisom.com, Limited was found in 2000 with the idea of bringing together talented Internet professionals, in such areas as website designing, Internet marketing and e-tailoring, and offering their collective talents to companies."
"Itrisom.comís team will seamlessly work with your present IT or marketing department to bring your product or service to market via the Internet. We will also maintain your website and customer base through such services as online customer care, order processing and the execution and handling of auctions."
The complaint is based on the U.S. trademark BOW-FLEX, registered on November 4, 1986, for exercise machines (international class 28), a copy of which appears as Annex C of the Complaint.
Complainant also registered the following domain names:
<bowflex.biz>, registered on May 11, 2002;
· <bowflex.com>, registered on August 11, 1995;
· <bowflex.info>, registered on May 11, 2002;
· <bowflex.net>, registered on April 6, 2000;
· <bowflex.org>, registered on April 6, 2000;
· <bowflex.us>, registered on May 11, 2002;
All these domain names are connected to Complainant's BOWFLEX website, located at "http://www.bowflex.com".
Annex F shows that on October 1, 2002, the Domain Name was connected to a website displaying, promoting and offering for sale an exercise machine called the BandFlex Home Gym. The seller presents itself as being the company <bowflexexercise.com>. This page also contains a chart comparing the advantages of the BandFlex over the BowFlex Power Pro, stating that the BandFlex offers 260 pounds of resistance and 67 possible exercises for $349.99 versus 210 pounds of resistance and 60 possible exercises for the BowFlex Power Pro for $1499.99.
The Domain Name is presently connected to a website displaying the sentence "This Site is UNDER CONSTRUCTION" in red and blue characters on a plain white background.
According to Annex E to the complaint, Complainantís representatives sent a cease and desist letter on September 19, 2002, to Respondent by facsimile, email and mail, requesting Respondent to cease and desist from using the Domain Name and any other intellectual property right owned by Complainant and to transfer the Domain Name to Complainant. Respondent did not answer this letter.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainantís BOWFLEX mark.
5. Parties Contentions
Complainant contends that the Domain Name is confusingly similar to Complainantís BOWFLEX trademark, that Respondent has no legitimate interest in respect of the Domain Name and that the Domain Name has been registered and is used in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registration.
Respondent did not submit any response.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and is being used in bad faith.
a. Identity or Confusing Similarity
The Domain Name is <bowflexexercise.com>.
"BOWFLEX" is a registered trademark of Complainant.
The Domain Name thus consists of the trademark of Complainant and of the generic term "exercise". The Administrative Panel is of the opinion that the Domain Name is confusingly similar to Complainantsí BOWFLEX trademark, because there is no doubt that the predominant and distinctive element of the Domain Name is "bowflex".
"Exercise" is a generic term, which in addition to the name "Bowflex" does not create a new meaning of its own, within which "Bowflex" would no longer be perceived as the trademark of Complainant.
It is even likely that the public, when reading or hearing the Domain Name will be led to believe that it is operated by, related to, or endorsed by Complainant.
In this respect, the addition of the word "exercise" is of a nature to increase the likelihood of confusion, since "BOWFLEX" is precisely a trademark that is used to distinguish exercise machines (See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110, concerning <ansellcondoms.com>, where complainant is a renowned seller of condoms).
In view of the above, the Administrative Panel finds that the Domain Name is confusingly similar to the trademark "BOWFLEX" of Complainant.
b. Rights or Legitimate Interests
By not submitting a response, Respondent has failed to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the Domain Name. Notwithstanding this, it is the Panel's duty to find whether, considering the facts and circumstances of the case at issue, Respondent has a right or a legitimate interest in the Domain Name. To this end, the following findings are relevant:
· Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating any such mark.
· Prior to any notice of the dispute, Respondent had not used the Domain Name in connection with any bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. In this respect, the Panel finds that the offering and promotion of competing exercise machines under the BandFlex trademark on the web page that was formerly connected to the Domain Name does not amount to a bona fide offering of goods, but rather to a parasitic behavior, as furthermore developed below.
· There is no evidence that Respondent is commonly known by the domain name or is making a legitimate noncommercial or fair use of the Domain Name within the meaning of paragraph 4(c)(ii) or (iii) of the Policy.
Therefore, and in light of the arguments and the evidence brought by Complainant, the Administrative Panel finds that Complainant has sufficiently established that Respondent has no right or legitimate interest in the Domain Name.
c. Registration and Use in Bad Faith
The evidence submitted by Complainant clearly shows that Respondent knew of Complainant and its products, as Respondent profiled itself on the web page formerly connected to the Domain Name as a competitor of Complainant selling competing exercise machines under the BandFlex trademark, which were compared to Complainant's own products.
The choice of a domain name incorporating the trademark BOWFLEX to commercially exploit a website offering competing exercise machines for sale illustrates Respondentís eagerness to draw potential clients of Complainant to its own website where its competing products are offered for sale, thereby taking a free ride on the goodwill of Complainantís BOWFLEX trademark.
In view of the above, the Administrative Panel finds that Respondent registered the Domain Name primarily for the purpose of disrupting the business of a competitor, namely Complainant, and that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the "BOWFLEX" trademark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or of a product or service on Respondent's website, in violation of paragraph 4(b)(iii) and (iv) of the Policy.
In conclusion, the Administrative Panel finds that the Domain Name has been registered and is being used in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name <bowflexexercise.com> registered by Respondent is confusingly similar to the trademark of Complainant, that Respondent has no right or legitimate interest in respect of the Domain Name, and that Respondentís Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel orders the transfer of the Domain Name <bowflexexercise.com> to Complainant.
Date: February 3, 2003