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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Betty Ford Center v. Martijn Koek

Case No. D2006-0872

 

1. The Parties

The Complainant is The Betty Ford Center, Rancho Mirage, California, United States of America, represented by R. Stephen Doan, United States of America.

The Respondent is Martijn Koek, Beeldspraak, Rotterdam, Netherlands.

 

2. The Domain Name and Registrar

The disputed domain name <bettyfordclinic.info> (hereafter “the Domain Name”) is registered with Key-Systems GmbH dba domaindiscount24.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 10, 2006.

On July 12, 2006, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue.

On August 2, 2006 Key-Systems GmbH dba domaindiscount24.com 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 the Rules, paragraphs 2(a) and 4(a), the Center on August 23, 2006, formally notified the Respondent of the Complaint and of the initiated proceedings.

In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on September 15, 2006.

The Center appointed Geert Glas as the sole panelist in this matter on September 26, 2006. 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 the Rules, paragraph 7.

Having reviewed the communication records in the case file, the Panel finds that the Center has discharged its responsibility under Paragraph 2(a) of the Rules “to employ reasonably available means calculated to achieve actual notice to Respondent.”

Therefore the Panel shall issue its Decision based on the Complaint, the Policy, the Rules, the Supplemental Rules and the verifiable facts, but without the benefit of any Response from Respondent.

 

4. Factual Background

In 1978 Betty Ford, the wife of the former US President Gerald Ford, confronting her alcoholism and chemical dependency, sought treatment. In 1982, after recovery, she established the Complainant where Betty Ford still serves on the Board.

Today, the Complainant is internationally recognized as a preeminent alcohol and narcotic rehabilitation center. It treats patients from around the globe.

The Complainant has registered the mark BETTY FORD CENTER as a US service mark for educational services in the field of counseling, recognizing and treating addictive diseases (class 41), as well as for providing counseling and rehabilitative services for alcohol and other dependent patients and their families (class 44). The Complainant has used the name since October 4, 1982, in connection with such services, as evidenced in the extract from the certificate of registration with the United States Patent and Trademark Office.

The Respondent registered the Domain Name on July 15, 2004.

The Domain Name does not resolve to an active website, but only to a single page stating “Betty Ford Clinic 28 September 2003 – 24 September 2006”.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that Respondent has registered the Domain Name which is confusingly similar to Complainant’s mark, that Respondent has no rights or legitimate interests in the Domain Name, and that the Domain Name has been registered and is being used in bad faith.

Consequently, Complainant requires the transfer of the registration of the Domain Name to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Confusingly Similar

The Domain Name is <bettyfordclinic.info>.

The Complainant has registered the mark BETTY FORD CENTER as a U.S. service mark and has used the name since October 4, 1982.

The name Betty Ford identifies a living individual, Mrs. Betty Ford, who gave her consent for the use of her name by the Complainant.

The Domain Name reproduces the distinctive elements of the Complainant’s service mark (i.e. the name Betty Ford).

The sole difference between the Complainant’s mark and the Domain Name is the use of the word “clinic” instead of “center”.

The word “center” is not a distinctive element of the Complainant’s mark. The word “clinic” is descriptive of the services closely associated with the Complainant’s mark.

In view of the above, the Administrative Panel finds that the Domain Name <bettyfordclinic.info> is confusingly similar to the service mark BETTY FORD CENTER of the Complainant.

B. Rights or Legitimate Interests

Under paragraph 4 (c) of the Policy, legitimate interests in a domain name may be demonstrated by showing that:

(i) before any notice of this dispute, the Respondent used, or demonstrably prepared 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 has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain or to misleadingly divert customers or to tarnish the trademark at issue.

The Respondent has not provided any Response to the Complaint.

The Panel has carefully considered whether there is any basis on which it could be contended that any of the circumstances in paragraph 4(c) of the Policy apply.

No such right or legitimate interest can be deduced from the page to which the Domain Name resolves and which merely consist of the mention “BETTY FORD CLINIC 28 September 2003 – 24 September 2006” without any explanation as to what these dates refer to.

In the absence of any such information, reference is hereby made to the following decisions: Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution September 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd. and Glenn Greenhouse, WIPO Case No. D2000-1221 (finding that Respondent’s failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

In view of the above, the Panel finds that Respondent has not demonstrated to have any rights or legitimate interests in respect of the Domain Name.

C. Registered and Used in Bad Faith

The Complainant is internationally recognized as a preeminent alcohol and narcotic rehabilitation center. The use of the name Betty Ford by the Complainant for its services of counseling, recognizing and treating addictive diseases is highly distinctive of the Complainant’s business. It was indeed former First Lady Betty Ford’s honesty in dealing with her substance abuse and recovery which overcame the reluctance with which people had talked about such matters. The Complainant’s service mark is widely used and broadly known.

The Panel finds that the choice of a Domain Name which is confusingly similar to the Complainant’s mark by the Respondent cannot result from a mere coincidence.

Quite the contrary, the evidence suggests that the Respondent is using the Domain Name for commercial gain, more specifically to promote concerts and parties where alcoholic beverages are sold. One of the screenshots taken from the Respondent’s website on May 23, 2006, and produced by the Complainant depicts various wine and alcohol bottles with as subtitle “WARNING - The following material can be shocking. Experienced patients only”. As indicated above, this website is no longer accessible.

Respondent could have easily chosen a domain name adequately reflecting both the object and independent nature of its site.

By failing to do so, and by knowingly choosing a domain name which is confusingly similar to the service mark and the name of the Complainant, the Respondent has intentionally created a situation which is at odds with the legal rights and obligations of the parties.

In view of the above, the Administrative Panel finds that Respondent has registered and used the Domain Name in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <bettyfordclinic.info> be transferred to the Complainant.

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Geert Glas
Sole Panelist

Dated: October 10, 2006