Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Wellness International Network, Ltd , Plano, TX, USA ("Complainant") represented by Dana M Campbell, Owens, Clary & Aiken, L.L.P. The Respondent is Webfrogs, Plano, TX, USA ("Respondent").

The domain name at issue is "win-ltd.com" registered with Melbourne IT, Ltd DBA Internet Names Worldwide.

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as a panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 4, 2000; The Forum received a hard copy of the Complaint on November 27, 2000.

On December 8, 2000, Melbourne IT, Ltd DBA Internet Names Worldwide confirmed by e-mail to the Forum that the domain name "win-ltd.com" is registered with Melbourne IT, Ltd DBA Internet Names Worldwide and that the Respondent is the current registrant of the name. Melbourne IT, Ltd DBA Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT, Ltd DBA Internet Names Worldwide registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On December 13, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 2, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@win-ltd.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 5, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

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." 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 the Respondent.

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

A. Complainant

Complainant asserts that Respondent’s domain name, win-ltd.com, is confusingly similar to its registered mark, WIN. In addition, Respondent has no rights or legitimate interests in the domain name at issue. And finally, Respondent has registered and used the domain name at issue in bad faith by acquiring the domain name primarily for the purpose of selling or otherwise transfering the domain name for valuable consideration in excess of Respondent’s out-of-pocket costs.

B. Respondent

Respondent has failed to submit a response in this matter.

Complainant, Wellness International Network, Ltd., owns the registered mark WIN, which it uses in all aspects of product merchandising of health and nutrition products through direct sales and multilevel marketing channels. Since 1992, Complainant has used its registered mark continuously and extensively in interstate and international commerce in association with the advertising and sale of health and nutrition products.

Since 1996, Complainant has actively advertised and promoted its mark via a web site which uses the WIN acronym as the essential element of the domain name, winltd.com. Complainant has invested substantial sums of money in developing and marketing its mark.

Respondent, Webfrogs, registered the domain name in question on behalf of Mr. Smith, an independent distributor of Complainant. Registration of Complainant’s mark is in strict violation of the distributor agreement made between Mr. Smith and Complainant.

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."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

Under the UDRP, Complainant must demonstrate that it has rights in a mark, and that the domain name at issue is identical or confusingly similar to that mark.

Accordingly, Complainant’s rights are evidenced by its registered mark, WIN. Respondent’s domain name, win-ltd.com, is found to be confusingly similar because a reasonable Internet user would assume the domain name is somehow related to the Complainant’s mark. See Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s web site, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

Respondent has asserted no rights or legitimate interests in relation to the domain name at issue. Respondent is not commonly known by the domain names, nor is Respondent using the domain names in connection with a bona fide offering of goods or services. Policy ¶ 4(c)(i)-(ii). See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).

Consequently, Respondent’s failure to show evidence sufficient to refute Complainant’s assertions, entitles the Panel to conclude that Respondent has no such rights or legitimate interests in regard to the domain name at issue. See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names and no use of the domain names has been proved).

Finally, Respondent has acted in bad faith because circumstances indicate it has registered the domain name in question primarily for the purpose of selling or otherwise transferring the domain name to the Complainant, or other party, for valuable consideration in excess of out of pocket costs directly related to the domain name. See World Wrestling Fed’n Entertainment, Inc. v. Bosman, D0099-0001 (WIPO Jan. 14, 2000) (finding that Respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out of pocket costs).

In addition, Respondent has demonstrated bad faith by registering the domain name with the intent to attract Internet users by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the domain name at issue. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the Complainant’s well known marks, thus creating a likelihood of confusion strictly for commercial gain).

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

Accordingly, it is ordered that the domain name win-ltd.com be transferred from Respondent to the Complainant.