WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Neriah Naturals, LLC dba GPRX v. Domain Administrator
Case No. D2007-0315
1. The Parties
The Complainant is Neriah Naturals, LLC dba GPRX of West Palm Beach, Florida, United States of America, represented by Oretsky Law Firm, P.L., United States of America.
The Respondent is Domain Administrator of West Bay, Cayman Islands, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <gprx.com> is registered with Names Real, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hard copy on March 1, 2007 and in electronic copy on March 8, 2007. On March 5, 2007, the Center transmitted by email to Names Real, Inc. a request for registrar verification in connection with the domain name at issue. On March 6, 2007, Names Real, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 12, 2007. In accordance with paragraph 5(a) of the Rules, the due date for Response was April 1, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2007.
The Center appointed Brigitte Joppich as the sole panelist in this matter on April 11, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
4. Factual Background
The Complainant is a US company selling dietary supplements, personal care products, food and books under the name GPRX. On October 30, 2006, the Complainant acquired all rights in the trademark GPRX registered with the USPTO under Registration Number 3180746 (“the GPRX Mark”).
The Respondent became the registered owner of the domain name <gprx.com> on February 20, 2007 as the result of an auction.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are given in the present case:
(i) The domain name is confusingly similar to the GPRX Mark as it uses the exact combination of letters in exactly the same order.
(ii) The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the domain name: Even after extensive research, the Complainant is unaware of any bona fide offering of goods and services by the Respondent under the domain name. The Complainant contends that the Respondent has not been known by the domain name either. The Respondent rather offered the domain name to the Complainant during an auction and was commonly known as a “cybersquatter”. Finally, the Complainant contends that the Respondent is using the domain name as a parking service and is trying to divert customers to other services which is neither a bona fide nor a non-commercial or fair use of the domain name.
(iii) The Complainant also contends that the domain name was registered and has been used in bad faith. Bad faith registration results from the Respondent’s offer of the disputed domain name to the Complainant prior to its acquisition during an auction, while bad faith use stems from the Respondent’s attempt to divert customers and to benefit in the goodwill of the Complainant’s business identifier.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements are present:
(i) the domain name is identical or confusingly similar to the Complainant’s trademark, and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name, and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name fully incorporates the Complainant’s GPRX Mark. Furthermore, it is well established that the specific top level domain name is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant’s trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525 - <magnumpiering.com> et al; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 – <rollerblade.net>; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374 - <moor-huhn.com>).
Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to the respondent of the dispute, the use by the respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the service marks at issue.
The Respondent did not file a response in this proceeding. Therefore, the Complainant’s assertions that the Respondent lacks rights or legitimate interests stand unrebutted. As the Respondent has apparently not made any bona fide offering of goods or services in connection with the domain name and is neither commonly known by the domain name nor contends to make a legitimate non-commercial or fair use of the domain name, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests under paragraphs 4(a)(ii) and (c) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which for purposes of paragraph 4(a)(iii) of the Policy shall be evidence of the registration and use of the domain name in bad faith, including
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; and
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
The two elements of the third requirement of the Policy are cumulative conditions: the Complainant must show that the domain name was registered and is being used in bad faith. This point is clear from the wording of the Policy and has been confirmed ever since Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 <telstra.org> (cf. Telstra Corporation Limited v. Adult Web Development and Telstraexposed, WIPO Case No. Case No. D2002-0952 - <telstramobile.com>; Telstra Corporation Ltd v. David Whittle, WIPO Case No. D2001-0434 - <telsra.com>; Prada S.A. v. Mr. Chuan Sheng Wang, WIPO Case No. D2003-0758 - <prada.org>).
Respondent default does not automatically result in a judgment for the Complainant and the Panel must not necessarily accept as true factual allegations in the Complaint that are unsupported by evidence (cf. Brooke Bollea, aka Brooke Hogan v. Robert McGowan, WIPO Case No. D2004-0383 - <brookehogan.com>).
As to bad faith registration and use, the Complainant states that “Prior to the Respondent registering the domain name, the Respondent offered to sell such name to the Complainant during an auction period” and “Complainant received unsolicited correspondence regarding the sale of the domain name immediately prior to the end of an auction period. It is clear that Respondent registered <gprx.com> in anticipation of trying to sell it for an ill-gotten gain”. While these statements are in principle appropriate to support a finding of bad faith under the Policy, they are not supported by any evidence here. Neither the facts are fully presented to the Panel (as the offer must be for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name) nor is any evidence submitted. As the missing evidence is most likely available to the Complainant, the Complainant’s allegations cannot be accepted in this case as true without supporting proof.
It is entirely possible that this Respondent, as the Complainant appears to imply, is well familiar with the domain name system and has a history of cybersquatting. However, once again, the Complainant has failed to advance any evidence of this assertion, which if true should not have been difficult to establish.
On balance, the Panel is reluctant to order a transfer on this minimal presentation of facts, and finds that the Complainant has not satisfied the requirements of paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, the Complaint is denied.
Dated: April 25, 2007