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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Healthcare Uniform Company, Inc. dba Life Uniform v. Moniker Privacy Services / Nevis Domains

Case No. D2007-0506

 

1. The Parties

The Complainant is Healthcare Uniform Company, Inc. dba Life Uniform, St. Louis, Missouri, United States of America, represented by Bryan Cave, LLP, United States of America.

The Respondent is Moniker Privacy Services / Nevis Domains, 20 SW 27th Ave., Suite 201, Pompano Beach, Florida, United States of America / Charlestown, Nevis, Saint Kitts and Nevis.

2. The Domain Name and Registrar

The disputed domain name <lifeuniforms.com> (the “Disputed Domain Name”) is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2007. On April 3, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On April 14, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response indicating the entity behind the Whois Privacy Services and confirming that Nevis Domains is listed as the registrant and providing the contact details. On April 24, 2007, a notice conveying this information was sent to Complainant by the Center and on April 27, 2007, Complainant replied to the Center and filed an amendment to the Complaint. 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 May 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 25, 2007.

The Center appointed Clive L. Elliott, Robert A. Badgley and Mauricio Jalife Daher as panelists in this matter on June 26, 2007. The Panel finds that it was properly constituted. Each member of 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

Complainant, Healthcare Uniform Company, Inc. trades as Life Uniform in the United States of America and is involved in supplying a large range of healthcare related apparel, medical equipment and supplies. Complainant commenced business in 1965 and now has over two hundred retail store locations in 38 states throughout the United States of America.

Complainant offers its LIFE UNIFORM retail services via the Internet at its website at “www.lifeuniform.com”, where customers can purchase a wide variety of healthcare apparel and related medical equipment items. Complainant’s website receives approximately 25,000 “hits” per month.

Complainant is the registered proprietor of a number of trademark registrations, including the following United States registrations and application (including all goodwill associated therewith):

LIFE UNIFORM and Design (U.S. Reg. No. 3,186,315) for: (Int’l Cl. 35) covering essentially retail store services;

LIFE UNIFORM (U.S. Serial No. 78/737,827) for: (Int’l Cl. 35) covering essentially retail store services.

According to the Moniker Online Services, LLC Whois database, Respondent is “Nevis Domains”.

5. Parties’ Contentions

A. Complainant

Complainant asserts that through its continuous and wide-spread use of its LIFE UNIFORM mark since 1965, the mark has gained substantial notoriety, fame and consumer and industry recognition as identifying Complainant’s quality retail services and healthcare apparel goods.

Complainant states that it believes the actual registrant has hidden his, her or its true identity and contact information by utilizing Moniker Online Services, LLC’s “Domain Whois Privacy” service. Complainant contends that because Respondent chose to hide his, her or its true identity and contact information, Complainant was not able to contact Respondent to demand that it cease and desist from its illegal activities.

Complainant asserts that Respondent is using the Disputed Domain Name to improperly confuse and misdirect Internet users looking for Life Uniform and/or its genuine LIFE UNIFORM retail services, products and website. Complainant also asserts that these Internet users are being directed to Respondent’s search portal website at “www.lifeuniforms.com”, which displays search category headings with various links to third party direct competitors.

Complainant notes that while Respondent’s website does not appear to directly sell or offer for sale any goods or services, it provides numerous links to third party websites many of which sell and offer for sale identical healthcare apparel and medical equipment products, in direct competition with Complainant’s LIFE UNIFORM retail services, website and catalog. On this basis, it is asserted that Respondent’s conduct is designed to misdirect Internet users who are attempting to access Life Uniform’s genuine site. Specifically, Respondent has registered an insignificant variation of Complainant’s LIFE UNIFORM mark in an effort to lure and misdirect Internet users who mistakenly believe that Life Uniform is Life Uniforms or who may simply make a common typographical error.

Complainant contends that Respondent has no legitimate rights or interest in the Disputed Domain Name and it registered and is using the Disputed Domain Name in bad faith. In this regard it is submitted that Respondent’s bad faith conduct exists for, inter alia, the following reasons:

First, Respondent is intentionally attempting to divert, for commercial gain, Internet users to associated competing websites to confuse and mislead consumers and that Respondent’s mere act of typo-squatting presents evidence of bad faith.

Second, Respondent’s bad faith conduct is designed to disrupt and harm Complainant’s business.

Third, upon information and belief, Respondent has no legitimate trademark, service mark or other intellectual property rights in or to the Disputed Domain Name, or any similar marks or names.

Fourth, Respondent plainly knew of Life Uniform’s long and continuous use of its LIFE UNIFORM mark at the time of registration and that it had no right, title or interest, whatsoever, in the mark or Disputed Domain Name.

B. Respondent

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

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name Complainant must prove that:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) 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.

Having considered the Complaint, the Panel finds the following.

A. Identical or Confusingly Similar

The evidence in this case is clear and largely un-contradicted. Complainant has clearly used the LIFE UNIFORM name and mark for a number of years and registered the LIFE UNIFORM trademark. The Panel finds that Complainant has traded in a significant way for many years and that it has the necessary rights in and to the trademark LIFE UNIFORM.

The Disputed Domain Name is not identical to Complainant’s LIFE UNIFORM trademark. However, Respondent’s use of Complainant’s LIFE UNIFORM mark in the Disputed Domain Name is confusingly similar because it incorporates the trademark in its entirety along with the generic top-level domain “.com”. The Panel finds that the distinctive portion of Complainant’s trademark has been adopted. On this basis, it is found that the Disputed Domain Name is virtually identical and certainly confusingly similar to the trademark LIFE UNIFORM.

Accordingly, the Panel is satisfied that the first element of the Policy has been met.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Respondent, who filed no response in this proceeding, has not invoked any of the circumstances of Policy, paragraph 4(c) to suggest any “rights or legitimate interests” in respect of the Disputed Domain Name. Respondent was not licensed or authorized by Complainant to use the latter’s mark in any manner. Nor is there any evidence that Respondent is commonly known by the Disputed Domain Name.

Respondent’s construction of a website featuring Complainant’s mark cannot be considered a bona fide use under the Policy. There are numerous prior decisions under the Policy holding that the unauthorized appropriation of another’s trademark in one’s domain name and the commercial use of the domain name in a corresponding website do not confer rights or legitimate interests upon the owner of such a domain name. See, e.g. America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374 (December 11, 2000) (“it would be unconscionable to find that a bona fide offering of services in a respondent’s operation of website using a domain name which is confusingly similar to the complainant’s mark and for the same business”).

Accordingly, the Panel finds that this element is satisfied.

C. Registered and Used in Bad Faith

The Panel finds that Respondent has engaged in intentional diversion for commercial gain based on the content of the above websites and infers from the content of these sites that it is motivated by commercial gain.

The Panel is also of the view that Respondent’s conduct is consistent with bad faith, in particular having engaged in a pattern of preclusive registrations. The Panel also notes the possibility that Respondent Nevis Domains in this proceeding may be the same respondent named in other UDRP proceedings, noting also that the party in those cases (like Respondent here) routinely uses Moniker Privacy Services. Above all, though Respondent had the opportunity to deny that it is the same party that was held in bad faith in those other cases Respondent opted not to deny this allegation. Accordingly, the Panel is prepared to draw the inference that anything the Respondent may have had to say in unlikely to have been in its favour.

Based on the case file the third element of the UDRP is also established.

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 <lifeuniforms.com> be transferred to the Complainant.

Dated: July 17, 2007