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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Klein-Becker IP Holdings, LLC v. UD Corp c/o Konstantin

Case No. D2006-1481

 

1. The Parties

The Complainant is Klein-Becker IP Holdings, LLC, Carson City, Nevada, United States of America, represented by Nagin Gallop Figueredo, P.A., United States of America.

The Respondent is UD Corp c/o Konstantin, of Kirovec, Leningradskaya, Oblast’, Russian Federation.

 

2. The Domain Name and Registrar

The disputed domain name <strivectininfo.com> is registered with EstDomains, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2006. On November 22, 2006, the Center transmitted by email to EstDomains, Inc. a request for registrar verification in connection with the domain name at issue. On December 11, 2006, EstDomains, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 15, 2006. The Center verified that the Complaint together with the amendment to 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 formally notified the Respondent of the Complaint, and the proceedings commenced on December 29, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 18, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 19, 2007.

The Center appointed Fleur Hinton as the sole panelist in this matter on January 31, 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 the Rules, paragraph 7.

 

4. Factual Background

The Respondent is the registrant of the domain name <strivectininfo.com>. The Respondent registered the domain name<strivectininfo.com> on October 23, 2005.

The Complainant is the owner of the registered trademark STRIVECTIN-HC, the owner by assignment of the registered trademark STRIVECTIN-SD, and the applicant by assignment for a trademark registration for STRIVECTIN with a date of first use in commerce of August 16, 2002 in which it also asserts common law rights. These trademarks are referred to collectively as the “StriVectin Marks”. The Complainant has provided evidence of registrations obtained in a number of countries and licensed to Klein-Becker usa, LLC exclusively for the manufacture, distribution and sale of cosmeceutical products including those for the treatment of stretch marks and a topical hand cream. These products are sold in retail stores and on websites owned by the Complainant’s licensee including that at “www.strivectin.com”.

The Complainant has rights in the trademark STRIVECTIN-SD dating back to August 16, 2002 from its predecessor in title, Western Holdings, LLC which assigned the trademark to the Complainant on April 11, 2005.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that the domain name <strivectininfo.com> is identical or confusingly similar to a trademark in which the Complainant has rights. In support of this contention, the Complainant cites its international trademark registrations and applications as well as the fact that the STRIVECTIN products have been and are being sold on various websites and in shops and that this use goes back to 2002. The effect of this is that the public identifies the cosmetic products sold under the STRIVECTIN trademark as being connected in the course of trade with the Complainant’s licensee Klein-Becker usa, LLC.

The Complainant contends that the Respondent has no rights or legitimate rights in respect of the domain name the subject of the complaint and that it is not currently in use, that the Respondent is not known by the domain name and has no connection with the Complainant or the Complainant’s goods. The Complainant states that the Domain Name <strivectininfo.com> is not in use and defaults to “www.searchadv.com”. This is no longer the case. The domain name <strivectininfo.com> is now a pornography website.

Finally, the Complainant contends that the domain name <strivectininfo.com> is so similar to the Complainant’s domain name and trademark that the Respondent’s only intention in registering the domain name must have been to attract business to its website at the expense of the Complainant’s business.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the domain name <strivectininfo.com> is confusingly similar to the Complainant’s StriVectin Marks, including the trademark STRIVECTIN, in which the Panel finds the Complainant has common law rights. A person familiar with the Complainant’s trademark STRIVECTIN and the products made available by the Complainant’s licensee would be likely to expect the domain name <strivectininfo.com> to lead to a website providing information about the Complainant’s products.

Accordingly, the Panel finds that the Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

The Respondent has not provided the Panel with any information as to its reason for adopting the domain name <strivectininfo.com> so that the Panel has no information upon which it could conclude that the Respondent has any rights or legitimate interest in the domain name <strivectininfo.com>.

The trademark STRIVECTIN is not one which encompasses a generic term or the name of a person or place. It is an invented word. It is difficult to believe, therefore, that this name is simply one which occurred to the Respondent. The Complainant adopted the trademark STRIVECTIN first and, in order to overcome that fact and the substantial reputation which the Complainant enjoys, the Respondent would need to show that it has some right to use the name <strivectininfo.com>. It has not done that.

Accordingly, the Panel finds that the Complainant has established the second element of the Policy.

C. Registered and Used in Bad Faith

The grounds upon which a Respondent may be found to have registered and used a domain name in bad faith are set out in the Uniform Domain Name Dispute Resolution Policy (‘UDRP’) and are in essence: to persuade the trademark owner to buy the domain name from the Respondent; to prevent the trademark owner from being able to register the domain name itself; to disrupt the business of a competitor; and/or to attempt to attract for commercial gain members of the public to the Respondent’s website by implying a connection with the Complainant.

These grounds are not exclusive. The Complainant has annexed to its Complaint as annex 15 a cease and desist letter of January 23, 2006 to the Respondent from the Complainant’s exclusive licensee’s lawyers informing the Respondent of the Complainant’s rights in the name. This did not, of course, occur prior to the registration by the Respondent of the domain name. However, the Complainant refers in its complaint to the decision in Slep-Tone Entertainment Corporation d/b/a Sound Choice Accompaniment Tracks v. Sound Choice Disc Jockeys, Inc FA 00093636 (NAF 2002). In that decision reference was made to the obligation of a domain name registrant to warrant to the registrar that the registration will not infringe any other party’s rights.

In that case it was found that the registrant must have become aware of Sound Choice because it would have been aware that the name “www.soundchoice.com” was unavailable. The Respondent in this case would have had a similar experience. Having become aware of another party with an interest in the invented trademark STRIVECININFO, the Respondent had an obligation to investigate further before adopting the name. In the case of Slep-Tone it was found that failure to do so by the respondent meant that the domain name had been registered in bad faith.

The Panel finds that that is also the case in the present situation. In the case of the domain name <strivectininfo.com> it is easier to impute bad faith because the domain name used is an invented word. The addition of the suffix “info” to the domain name would indicate to potential visitors that there is likely to be a connection between the Complainant and its domain name <strivectin.com> and the Respondent’s domain name <strivectininfo.com> which does not in fact exist. Furthermore, the Respondent appears to be attempting to attract, through the use of the domain names at issue, Internet users to a pornographic website by creating a likelihood of confusion with the distinctive mark of the Complainant.

These actions amount, in the view of the Panel, to registration and use of the domain in bad faith under the Policy.

 

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 <strivectininfo.com> be transferred to the Complainant.

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Fleur Hinton
Sole Panelist

Dated: February 9, 2007