Blink Health Inc. v. GREEN SMITH
Claim Number: FA2005001898326
Complainant is Blink Health Inc. (“Complainant”), represented by AJ Schumacher of Foley & Lardner LLP, New York, USA. Respondent is GREEN SMITH (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhealths.com>, registered with Dreamscape Networks International Pte Ltd.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 29, 2020; the Forum received payment on May 29, 2020.
On June 7, 2020, Dreamscape Networks International Pte Ltd confirmed by e-mail to the Forum that the <blinkhealths.com> domain name is registered with Dreamscape Networks International Pte Ltd and that Respondent is the current registrant of the name. Dreamscape Networks International Pte Ltd has verified that Respondent is bound by the Dreamscape Networks International Pte Ltd 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 June 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 2, 2020 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@blinkhealths.com. Also on June 12, 2020, 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 July 7, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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" 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
i) Complainant, Blink Health Inc., operates an online platform that allows patients to purchase prescription medications at discounted prices. Complainant has rights in the BLINK HEALTH mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,225,684, registered June 20, 2017). The disputed domain name <blinkhealths.com> is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire BLINK HEALTH mark and merely pluralizes the mark by adding the letter “s” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass off as Complainant and promote competing products and services. Further, Respondent may use the disputed domain name in furtherance of an illegal scheme.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent is disrupting Complainant’s business and attempting to attract Internet users to its competing website for commercial gain. Additionally, Respondent may use the disputed domain name to engage in a fraudulent scheme. Further, Respondent’s typosquatting behavior evidences bad faith. Finally, Respondent had actual knowledge of Complainant’s rights in the BLINK HEALTH mark.
B. Respondent
Respondent did not submit a response.
1. The disputed domain name was registered on November 11, 2019.
2. Complainant has established rights in the BLINK HEALTH mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,225,684, registered June 20, 2017).
3. The website of the disputed domain name offers prescription medication-related solutions that are similar to or directly competing with the goods and services offered by Complainant.
4. There are similarities between the layout of Complainant's website and the layout of Respondent’s website.
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”).
Complainant asserts rights in the BLINK HEALTH mark based upon the registration with the USPTO (e.g., Reg. No. 5,225,684, registered June 20, 2017). Registration of a mark with the USPTO is generally sufficient to establish rights in the mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the BLINK HEALTH mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant claims that the disputed domain name is confusingly similar to Complainant’s mark because it incorporates the entire BLINK HEALTH mark and merely pluralizes the mark by adding the letter “s” and the “.com” gTLD. Addition of a single letter and a gTLD to a mark does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) (“The Panel agrees; Respondent’s <archerhotels.com> is confusingly similar to complainant’s ARCHER HOTEL mark.”). Complainant additionally contends that the disputed domain name is highly similar in appearance, sight, sound and connotation to Complainant’s BLINK HEALTH mark. Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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 claims that Respondent does not have rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). The WHOIS information of record notes “Green Smith” as the registrant and no other information suggests that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use and instead uses the domain to pass off as Complainant and promote competing products and services. Use of a disputed domain name to compete with a complainant is not considered a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Additionally, replication of a complainant’s website to promote confusion is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”). Complainant provides a screenshot of Respondent’s webpage and notes that it offers prescription medication-related solutions that are similar to or directly competing with the goods and services offered by Complainant. Complainant also provides a screenshot of its own website and notes the similarities between its layout and the layout of Respondent’s website. The Panel agrees with Complainant and finds that Respondent’s use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith since Respondent disrupts Complainant’s business and attracts Internet users to its competing website for commercial gain. Use of a disputed domain name to pass off as a complainant and offer competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). The Panel recalls that Complainant provides screenshots of Respondent’s website which mimics Complainant’s website and offers products and services that compete with Complainant’s business. Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the BLINK HEALTH mark. Actual knowledge of a complainant’s rights in a mark evidences bad faith under Policy ¶ 4(a)(iii) and may be shown by a respondent’s use of that mark and other identifying information in connection with the domain name. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Complainant argues that Respondent clearly had actual knowledge of Complainant’s mark since Respondent displayed the BLINK HEALTH mark and Complainant’s other intellectual property in a way that is strikingly similar to Complainant’s official website. Complainant provides screenshots of Respondent’s webpage and its own webpage. The Panel infers, due to the manner of use of the disputed domain name and the notoriety of Complainant's mark that Respondent had actual knowledge of Complainant’s rights in the BLINK HEALTH mark before Respondent's registration of the disputed domain name, and thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkhealths.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: July 11, 2020
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