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Ed McCabe ("Mr. Oxygen"®) known worldwide for his educational
works and pioneering oxygen use, very recently won a huge victory against
NuScience Corporation for its unlawful use of Ed's registered trade-name "Mr.
Oxygen" by using Ed's trade-name in the domain name "Mr.Oxygen.com" to market
"Cellfood," and other products of NuScience that were not endorsed by Ed
It's one of those things we hope never happens... but, in the world of 'business as usual' it happens all the time.
See below for details.
Official World Intellectual Property Organization (“WIPO”) case summary and decision
Executive Summary of Official Decision
The following executive text summary is excerpted [with added text clarification within brackets] from the 6/7/2007 World Intellectual Property Organization (WIPO) Decision (full text below).
"Nu Science Corporation, [ Manufacturer of Cellfood ] a direct competitor, ... registered and used the [ MrOxygen.com ] Domain Name to trade on [make money off of, and deny him use of] the Complainant's [Ed McCabe's trade-] mark and reputation.
"The Panel concludes, therefore, that the [MrOxygen.com] Domain Name [Ed McCabe's registered trademark] was registered and used in bad faith [by NuScience/Cellfood].
"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 “mroxygen.com” be transferred [returned] to the Complainant [ Ed McCabe©1967."
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ed McCabe v. Nu Science Corporation
Case No. D2007-0422
1. The Parties
The Complainant is Ed McCabe of Hallandale, Florida, United States of America, represented by Eric D. Offner, United States of America.
The Respondent is Nu Science Corporation, Kevin Negrete, Lancaster, California, United States of America.
2. The Domain Name and Registrar
The disputed Domain Name <mroxygen.com> is registered with Tucows, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 17, 2007. On March 20, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On March 20, 2007, the Registrar 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 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 April 13, 2007. 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 April 20, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 11, 2007.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on May 23, 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 Complainant Ed McCabe is an author and journalist based in Florida. According to his website at “www.oxygenhealth.com,” in 1988 the Complainant published a book, “Oxygen Therapies, A New Way of Approaching Disease,” describing the benefits and techniques of re-oxygenating and re-mineralizing the human body. The website reports that more than 250,000 copies of the book have been sold, and that the Complainant has published numerous articles, delivered hundreds of lectures, and appeared on television and radio programs to discuss this subject. The website repeatedly refers to the Complainant as “Mr. Oxygen.”
The Complainant's informational website cited above links to the website of Oxygen America, Inc. (a Florida corporation) at “www.oxygenamerica.com,” on which consumers can purchase a variety of nutritional supplements, air purifiers, bottled water, and home health care devices. At least one of the products, MR. OXYGEN'S OXYEARTH, displays the MR. OXYGEN mark and is advertised as having been “personally designed” by “Mr. Oxygen, Ed McCabe.”
In November 2003 the Complainant applied for United States registration of the standard character mark MR. OXYGEN as a service mark, showing first use in commerce on January 1, 1991. The mark was registered by the United States Patent and Trademark Office (USPTO) on July 26, 2005, United States Registration No. 2975802, disclaiming the exclusive right to use the word “oxygen.”
The Respondent did not submit a Response in this proceeding. The Registrar's WHOIS database indicates that the Respondent registered the Domain Name on June 9, 2000.
The Domain Name currently resolves to a website at “www.nuscience.com,” which advertises the Respondent's CELLFOOD nutritional supplements that incorporate “bio-available oxygen.” The Respondent's website provides information about those products and where they can be purchased. According to the website, the Respondent is the world's leading manufacturer of “oxygen + nutrient” supplements and has produced these products for more than 40 years, based on Everett Storey's original formulation. The website states elsewhere that the Respondent has researched and developed oxygen-based health and beauty products since 1969, and that it sells its products internationally through a variety of distributors.
The “Our Company” page on the Respondent's website identifies the Respondent as NuScience Corporation (omitting the space after “Nu,” the form of the name that appears in the Registrar's WHOIS database). NuScience is a California corporation, listed on the state's business entity database. “Nu Science Corporation” (at the same address) is listed on the USPTO database as the owner of the registered CELLFOOD trademark.
Counsel for the Complainant sent the Respondent a cease-and-desist letter dated February 2, 2006, demanding transfer of the Domain Name. There is no evidence in the record that the Respondent replied to this letter or to the Complaint in this proceeding.
5. Parties' Contentions
The Complaint argues that the Domain Name is identical or confusingly similar to his MR. OXYGEN mark, and that the Respondent, a competitor, has no rights or legitimate interests in the name. The Complainant concludes that the Domain Name was registered and used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the 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.
Under paragraph 15(a) of the Rules,
“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.̶
As in other cases where a respondent fails to reply, the Panel must still satisfy itself that the Complainant in this proceeding has met its overall burden of proof under paragraph 4 of the Policy. Thus, the uncontested facts must provide a sufficient prima facie basis for finding identity or confusing similarity with the Complainant's mark and then for inferring that, more probably than not, the Respondent has no right or legitimate interest in the Domain Name, and has registered and used it in bad faith. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
A. Identical or Confusingly Similar
The Complainant indisputably holds the registered United States trademark MR. OXYGEN. The mark is identical to the Domain Name for UDRP purposes, as the period and space after “mr” cannot appear in a Domain Name System (DNS) address and the “.com” suffix is merely a necessary element of DNS addressing that is not distinctive as to source.
Thus, the Complainant satisfies the first UDRP element.
B. Rights or Legitimate Interests
The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which a respondent could demonstrate rights or legitimate interests in a contested domain name:
“(i) before any notice to you 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 (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 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.”
The Complainant denies, without contradiction, ever giving the Respondent permission to use his trademarked moniker.
An examination of the Respondent's website, to which the Domain Name resolves, reveals that the Respondent's website is commercial, and there is no indication that it uses the Domain Name for legitimate noncommercial fair use. Moreover, nothing in the record in this proceeding or on the Respondent's website suggests that the Respondent is known by the name “mroxygen” or “Mr. Oxygen”, or that it sells products with such a name. Instead, the Respondent's name is given as “NuScience” or “Nu Science”, and its website advertises its CELLFOOD line of products, CELLFOOD being a registered trademark held by the Respondent.
The trademark registration indicates that the mark MR. OXYGEN has been associated with the Complainant since 1991. The first page of results from a Google search on “mroxygen” all relate to the Complainant. The Complainant was a published author on the subject of oxygenation and made frequent media appearances on this subject long before the Respondent registered the Domain Name. A review of relevant websites shows that the Complainant is associated with commercial products that display his mark in labeling or advertising and that appear to compete directly with the Respondent's products. In these circumstances, where the Respondent uses the Domain Name only to divert Internet users to its own website selling competing products, it cannot be said that the Respondent uses the Domain Name in connection with a bona fide offering of goods or services.
Despite a cease-and-desist letter from the Complainant and notice of the Complaint in this proceeding, the Respondent has not come forward to assert any rights or legitimate interests. In the absence of contrary evidence, the Panel is entitled to draw a negative inference from the Respondent's default, namely that the Respondent has no such rights or legitimate interests (see Rules, paragraph 14(b)).
The Panel concludes, therefore, that the Complainant satisfies the second UDRP element.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that indicate bad faith. One of these, Paragraph 4(b)(iv), fits the evidence in this proceeding:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
In 2000, when the Domain Name was registered, the Complainant had not yet obtained trademark registration for the MR. OXYGEN mark. However, the mark was used in commerce from 1991 onward, and it appears from media reports in the 1990s that the Complainant was often referred to as “Mr. Oxygen,” frequently in connection with his 1988 book. Both the Complainant and the Respondent are located in the United States of America, where the book was published and where most of the media stories appeared. Both are associated with the sale of oxygenation products, a rather narrow industry niche. Several online reports or advertisements by distributors of health products and nutritional supplements mention both MR. OXYGEN and the Respondent's CELLFOOD products.
It is probable, therefore, that the Respondent, a direct competitor, was aware of the Complainant and registered and used the Domain Name to trade on the Complainant's mark and reputation. The Respondent has not offered any legitimate, alternative explanation for its choice of the Domain Name in response to the cease-and-desist letter or the UDRP Complaint, and none appears from an examination of the record and the Respondent's website.
The Panel concludes, therefore, that the Domain Name was registered and used in bad faith.
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 “mroxygen.com” be transferred to the Complainant.
W. Scott Blackmer
Dated: June 7, 2007
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