Blink Health Inc. v. Teddy Online Boot / fred ted
Claim Number: FA2108001960052
Complainant is Blink Health Inc. (“Complainant”), represented by AJ Schumacher of Foley & Lardner LLP, Illinois, USA. Respondent is Teddy Online Boot / fred ted (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkphamaceuticals.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2021; the Forum received payment on August 17, 2021.
On August 24, 2021, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <blinkphamaceuticals.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 August 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 2021 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@blinkphamaceuticals.com. Also on August 26, 2021, 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 17, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it operates an online pharmaceutical company. Complainant operates an innovative, first-of-its-kind online platform that allows patients to purchase their prescription medications online at discounted prices and then pick the medications up at their local pharmacy or have them delivered directly to their door. Since its founding in 2014, Complainant has been using technology to disrupt the traditional—and expensive—prescription drug paradigm and to “cure the disease” of high cost prescription medications by making the medications more affordable and accessible for millions of Americans. Today, Complainant offers discounted prescription prices on over 15,000 medications and has a network of over 35,000 participating pharmacies across the country, including in major national retailers like Walmart, Safeway, Kroger, Costco, and Publix, among many others. Complainant has rights in the BLINK mark through its registration in the United States in 2017.
Complainant alleges that the disputed domain name is confusingly similar to its BLINK mark, only differing by adding the term “phamaceuticals,” which is a misspelling of the term “pharmaceuticals,” along with the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor licensee of the BLINK mark. Additionally, Respondent does not use the disputed domain name for any bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to purport to offer Internet users directly competing products. The resolving website purports to offer prescription medication without requiring a prescription, thus it is an illegal online pharmacy. Respondent also uses the disputed domain name to pass off as Complainant and phish for users’ personal and financial information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to pass itself off as Complainant, disrupting Complainant’s business and attracting consumers for commercial gain by offering competing products, and by offering products illegally. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the BLINK mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark BLINK dating back to 2017, and uses it to operate an online pharmacy.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website purports to offer for sale products that compete directly with those of Complainant, and also to offer for sale without a prescription pharmaceuticals for which a prescription is required by law.
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”).
The disputed domain name incorporates Complainant’s BLINK mark in its entirely merely adding the term “phamaceuticals,” a misspelling of the term “pharmaceuticals”, along with the “.com” gTLD. Such changes may not negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”). The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies “Teddy Online Boot / Fred Ted” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website purports offer for sale products that compete directly with those of Complainant, and also illegally to sell prescription drugs without a prescription. Previous Panels have held that such use of an infringing domain name does not qualify as a bona fide offer of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was 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)). Thus the Panel finds that Respondent fails to use the disputed domain name to make 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)). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website purports to offer products that compete directly with those of Complainant, and purports to sell products illegally. Such use of an infringing domain name may demonstrate bad faith disruption and attraction to commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Google Inc. v. Domain Admin, FA 1502001605239 (Forum Mar. 22, 2015) (finding that use of a disputed domain name to aid illegal activities under Complainant’s trademark indicates Respondent’s bad faith); see also CVS Pharmacy, Inc. v. Alexander Shedrin, FA1816288 (Forum Dec. 7, 2018) (finding that the respondent registered the domain name in bad faith since the domain name was being used in connection to selling illegal pharmaceutical products). The Panel therefore finds bad registration and use faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkphamaceuticals.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 20, 2021
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