In the recent domain name dispute decision of Alticor Inc. v. Konstantin Becker a/k/a Sei-Sexy FA 1265965, (Nat. Arb. Forum July 15, 2009), a single member Panel was faced with a dispute over the domain www.amway-products.com. Complainant markets and sells over 450 products under the AMWAY mark, and has a trademark registration fro AMWAY dating back to the 1960s. Complainant maintains a web site at www.amway.com. Respondent did not provide a response to the Complaint.
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 addressing the first element, the Panel noted that Complainant does have federal trademark rights but also explained “The Policy does not require that the mark be registered in the country in which Respondent resides.” The Panel also found that the addition of the generic term “products” and the top-level domain “.com” was insufficient to distinguish the domain from the AMWAY mark. Thus, the Panel found Complainant satisfied the first element.
Moving to the second element, whether the Respondent had any rights or legitimate interests in the domain, the Panel observed that Respondent’s failure to respond to the Complaint allows for the Panel to infer a lack of rights. The Panel went further and found as follows:
Respondent is using the <amway-products.com> domain name to sell Complainant’s products. Complainant alleges that Respondent is attempting to pass itself off as an authorized distributor of Complainant’s products, undoubtedly for financial gain. The Panel therefore concludes that such use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the subject domain name pursuant to Policy ¶ 4(c)(i) or (iii).
The Panel also reviewed the Whois information provided by Respondent was not commonly known by the domain. The Panel found Complainant satisfied this element as well. Moving to the final element, bad faith, the Panel reviewed the use of the web site and explained:
The Panel agrees because Respondent’s use of a domain name confusingly similar to Complainant’s mark, which resolves to a commercial website offering Complainant’s products for sale, likely disrupts Complainant’s business. Therefore, the Panel concludes that Respondent has engaged in bad faith registration and use of the contested domain pursuant to Policy ¶ 4(b)(iii)….Bad faith registration and use of the <amway-products.com> domain name under Policy ¶ 4(b)(iv) can also be inferred based on Respondent’s use of a confusingly similar domain name to attract Internet users to a website that offers Complainant’s products for sale. The Panel may presume that Respondent profits from such use.
Ultimately the Panel found that Complainant satisfied all three element s and ordered the domain be TRANSFERRED.
