Nutrisystem finds sweet success in Ontario
In the case of Easthaven Limited v Nutrisystem.com Inc, Doc 00-CV-202854 (Ont SC, August 15 2001)the Ontario Superior Court has declined jurisdiction to settle a dispute over the domain name 'sweetsuccess.com'.
The defendant, Nutrisystem.com Inc, is incorporated under the laws of Delaware in the United States, with its principal place of business in Pennsylvania. It is engaged in the marketing, sale and distribution of weight loss programmes, including over the Internet. It is the owner of the trademark SWEETSUCCESS, registered in the United States.
The plaintiff, Easthaven Limited, is incorporated under the laws of Barbados and has its head office in Barbados.
Easthaven and Nutrisystem had previously brought their dispute before a US district court in Pennsylvania and had commenced proceedings under the Uniform Domain Name Dispute Resolution Policy of the Internet Corporation for Assigned Names and Numbers. Easthaven then commenced an action in Ontario in the attempt to prevent Tucows Inc, the domain name registrar, from transferring the disputed domain name to Nutrisystem.
Nutrisystem moved to dismiss Easthaven's claim on the basis of res judicata, abuse of process or forum non-convenience.
The Ontario court declined jurisdiction, finding that Ontario has no "real and substantial connection" to the subject matter of the action. According to the court, the mere fact that the disputed domain name was registered through a corporation that carries on business in Toronto (ie, Tucows) does not give the domain name a physical presence in Ontario.
Charles Morgan, McCarthy Tétrault, Montreal
Copyright © Law Business ResearchCompany Number: 03281866 VAT: GB 160 7529 10