Blink Health Inc. v. TCHOUANGA RAOUAL
Claim Number: FA2008001910379
Complainant is Blink Health Inc. (“Complainant”), represented by Robert Weisbein of Foley & Lardner LLP, Illinois, United States. Respondent is TCHOUANGA RAOUAL (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhealthpharmaa.com>, registered with Wix.com 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 August 27, 2020; the Forum received payment on August 31, 2020.
On September 1, 2020, Wix.com Ltd. confirmed by e-mail to the Forum that the <blinkhealthpharmaa.com> domain name is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com 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 September 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 22, 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@blinkhealthpharmaa.com. Also on September 2, 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 September 25, 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., is a company that sells medications online at discounted prices. Complainant asserts rights in the BLINK HEALTH mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,225,684, registered on June 20, 2017). The disputed domain name <blinkhealthpharmaa.com> is confusingly similar to Complainant’s mark, as it incorporates the BLINK HEALTH mark in its entirety and merely adds the term “pharmaa” along with the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent’s use of the BLINK HEALTH mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services. Rather, Respondent uses the domain name to confuse Internet users by passing off as Complainant in order to promote and offer competing pharmacy services.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent uses the domain name to pass off as Complainant and attract Internet users to its website for financial gain. Respondent also had knowledge of Complainant’s rights in the BLINK HEALTH mark at the time of registration.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on July 1, 2020.
2. Complainant has established rights in the BLINK HEALTH mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,225,684, registered on June 20, 2017).
3. The disputed domain name’s resolving website displays Complainant’s marks and copyrighted materials and offers competing pharmacy and prescription medication-related goods and services.
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 through its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to demonstrate 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).”). Here, Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 5,225,684, registered on June 20, 2017). Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s mark because the disputed domain name incorporates the BLINK HEALTH mark in its entirety and merely adds the term “pharmaa” and the “.com” gTLD. The addition of a generic or descriptive term and a gTLD is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per 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 argues that Respondent does not have rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BLINK HEALTH mark. Where a response is lacking, relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by that name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information for the disputed domain name lists the registrant as “TCHOUANGA RAOUAL” and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because respondent uses the domain name to pass off as Complainant and offer competing goods and/or services. Use of a domain name to pass off as a complainant for financial gain is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Complainant provides screenshots of Respondent’s website and argues the use of Complainant’s marks and copyrighted materials creates confusion that the website is associated with Complainant’s business. Therefore, the Panel agrees with Complainant that this does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (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 Respondent registered and uses the disputed domain name in bad faith because Respondent uses Complainant’s mark to pass off as Complainant and sell competing goods. Use of a confusingly similar domain name in competition with a complainant is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”). As previously noted, Complainant provides screenshots of Respondent’s website, showing Respondent’s use of Complainant’s marks and other intellectual property. Complainant also notes that Respondent’s website purports to offer competing pharmacy and prescription medication-related goods and services. The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Additionally, Complainant argues Respondent had knowledge of Complainant’s mark at the time of registration. Actual knowledge may be established through a mark’s notoriety and a respondent’s use of the domain name per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant argues that due to its mark being well known in the pharmacy industry and the fact that Respondent offers competing goods, there is a presumption Respondent knew of Complainant’s rights. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s mark at the time of registration, and thus finds that Respondent registered and uses the disputed domain name in bad faith 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 <blinkhealthpharmaa.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: October 2, 2020
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