Nuramax.com: UDRP decision based on LinkedIn connection of the two parties

Nuramax.com is a domain registered in 2022 and it appears to stand on its own two feet as a brand.

That’s not what Nutramax Laboratories, Inc. thought, however, and they filed a UDRP to get the domain from its registrant. In this case, the Respondent failed to respond and the Complainant reigned supreme in their statements, one of which stood out:

[…]  Respondent knows of Complainant and its business, because it follows its LinkedIn account.

That’s a bit far-fetched, in our opinion.

The Respondent’s fair use of the domain Nuramax.com was questioned further due to registering the domain NuramaxWellness.com on the day they were served with a UDRP.

Final decision: transfer the domain name Nuramax.com to the Complainant.

Nutramax Laboratories, Inc. v. Anuj Gupta / Nuramax wellness pvt. Ltd.

Claim Number: FA2207002004380

PARTIES

Complainant is Nutramax Laboratories, Inc. (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is Anuj Gupta / Nuramax wellness pvt. Ltd. (“Respondent”), India.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is , registered with GoDaddy.com, LLC.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Richard Hill as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on July 15, 2022; the Forum received payment on July 15, 2022.

On July 15, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On July 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 10, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nuramax.com. Also on July 21, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.

On August 14, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.

On August 14, 2002, the Panel issued an Order for Additional Submissions, requesting both parties to reply to certain questions by August 18, 2022, in particular requesting Respondent to provide evidence of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Panel also extended its deadline for the issuance of its decision.

On August 17, 2022, Respondent requested an extension of the deadline to submit its Additional Submission, citing medical reasons and attaching a medical certificate.

On August 17, 2022, the Panel granted the request for an extension of deadline, setting the new deadline at September 16, 2022.

On September 16, 2022, Complainant submitted an Additional Submission. Respondent did not submit an Additional Submission.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant states that it is a United States company, and via affiliates, develops, markets and distributes high quality nutritional supplements, including supplements for humans and animals. For over 30 years, Complainant’s affiliates have been using the NUTRAMAX marks, including NUTRAMAX LABORATORIES, in connection with developing, marketing, and distributing branded supplements. Complainant is an industry leader in setting and adhering to strict standards for manufacturing and quality control in the field of supplements. Complainant and its affiliates offer a wide array of supplements for humans, dogs, cats and horses and these supplements support joint health, digestive health, skin, and coat health (for animals) and provide other helpful benefits. Complainant and its affiliates also conduct significant laboratory research and clinical studies into its nutritional supplements and many of these studies have been published and/or presented in medical, veterinary, and other health-related journals and publications. As a result of this high quality level, Complainant’s supplements are widely regarded as the gold standard in the supplement industry and are highly recommended by veterinarians in promoting animal health. Complainant claims rights in the NUTRAMAX LABORATORIES mark through its registration in the United States in 1999.

Complainant alleges that the disputed domain name is confusingly similar to its NUTRAMAX LABORATORIES mark because it consists of a misspelled version of the dominant portion of Complainant’s mark and differs beyond that only with the addition of the “.com” gTLD.

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use its NUTRAMAX LABORATORIES mark in any way. Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to pass off as Complainant. Furthermore, Respondent uses the disputed domain to host third party competing pay-per-click advertisements.

Further, says Complainant, Respondent registered and uses the disputed domain in bad faith. Respondent uses the disputed domain to pass off as Complainant and host third-party competing pay-per-click advertisements. Furthermore, Respondent used a privacy service while registering the disputed domain.

B. Respondent

Respondent failed to submit a Response in this proceeding.

C. Additional Submissions

It its Additional Submission, Complainant provides evidence showing that Respondent follows Complainant’s LinkedIn account. Further, it states that the disputed domain name was registered before Respondent created its Nuramax Wellness company.

Further, says Complainant, Respondent uses the web site to promote its actual business; this supports the conclusion that the disputed domain name was registered as a means to generate revenue due to its similarity to Complainant’s mark.

In addition, Complainant presses its arguments.

FINDINGS

Complainant has rights in the mark NUTRAMAX LABORATORIES dating back to 1999 and uses it to market nutritional supplements.

The disputed domain name was registered in 2022.

Complainant has not licensed or otherwise authorized Respondent to use its mark.

The disputed domain name resolves to a parked page displaying pay-per-click hyperlinks to products and services some of which compete with those of Complainant.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “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.”

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

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

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

Identical and/or Confusingly Similar

The disputed domain name incorporates a misspelled version of the dominant portion of Complainant’s NUTRAMAX LABORATORIES mark and differs beyond that only with the addition of the “.com” gTLD. Such changes are not sufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) (“Respondent’s domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”); see also Liberty Mutual Insurance Company v. Texas Internet, FA1006001330686 (Forum Aug. 3, 2010) (holding domain name is confusingly similar to Complainant’s LIBERTY MUTUAL mark as the respondent simply omitted the letter “a”); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (“The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [ and ] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

Complainant alleges that Respondent is not commonly known by the disputed domain name. The WHOIS information of record shows that the registrant of the disputed domain name is “Anuj Gupta / Nuramax wellness pvt. Ltd”.

According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:

Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.

This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.

The Panel has consulted publicly available records and found that Nuramax Wellness Private Limited is an Indian company that was incorporated on 22 April 2022[i], and that Anuj Gupta, who appears to be a real person[ii], is a director of that company.

As noted above, the Panel requested both parties to reply to certain questions, in particular requesting Respondent to provide evidence of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services.

Respondent did not comply with this request. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent does not intend to use the disputed domain name in connection with a bona fide offering of goods or services.

Indeed, the disputed domain name resolves to a parked page displaying pay-per-click hyperlinks to products and services some of which compete with those of Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).

Complainant has not licensed or otherwise authorized Complainant to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “Anuj Gupta / Nuramax wellness pvt. Ltd” but , as noted above, the resolving website is a parked page that displays advertising links related to Complainant’s business. This is not evidence that Respondent is commonly known by the disputed domain name. Further, also as already noted, Respondent failed to reply to the Panel’s Order for Additional Submissions; the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Thus Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

Registration and Use in Bad Faith

Respondent has not presented any plausible explanation for its use of the disputed domain name, which is confusingly similar to Complainant’s mark. As already noted, in accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

Indeed, as already noted, the disputed domain name resolves to a website hosting various sponsored listings and links some of which relate to Complainant’s business and from which Respondent presumably commercially benefits. Panels have found a respondent to have acted in bad faith under Policy ¶ 4(b)(iv) where a respondent used a domain confusingly similar to another’s mark to profit from commercial links. See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). And the domain name owner is responsible for content on a resolving parked website, even if placed by a registrar. See Nutramax Laboratories, Inc. v. GRUPO SA Ltd Co / Grupo S.A. Ltd Co., FA 2202001985605 (Forum Mar. 30, 2022) (“Panels have found that respondents are ultimately responsible for the content of their resolving webpages.”). Thus the Panel finds that Respondent has registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).

This conclusion is supported by the fact that Respondent knows of Complainant and its business, because it follows its LinkedIn account.

Finally, the Panel notes that the domain name , which Respondent appears to be using for its actual business, was registered on July 21, 2022, the day on which the Complaint was served. The Panel cannot help inferring that Respondent knew that it was likely to lose the disputed domain name and regrets that the matter was not handled more expeditiously.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the domain name be TRANSFERRED from Respondent to Complainant.

Richard Hill, Panelist

Dated: September 19, 2022

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