Ōura Health Oy v. Unknown Unknown
Claim Number: FA2111001973510
Complainant is Ōura Health Oy (“Complainant”), represented by Tara K. Hawkes of Holland & Hart LLP, Colorado, USA. Respondent is Unknown Unknown (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ourasus.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2021; the Forum received payment on November 16, 2021.
On November 17, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ourasus.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 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@ourasus.com. Also on November 22, 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 December 20, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <ourasus.com> domain name is confusingly similar to Complainant’s OURA mark.
2. Respondent does not have any rights or legitimate interests in the <ourasus.com> domain name.
3. Respondent registered and uses the <ourasus.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Ōura Health Oy, is a health technology company, best known for the ŌURA Ring, a smart ring used to track sleep and physical activities. Complainant holds a registration for the ŌURA mark with the United States Patent and Trademark Office (“USPTO”) (see Reg. No. 6,161,009, Registered September 29, 2020, showing a Foreign Filing Date of February 27, 2015.)
Respondent registered the <ourasus.com> domain name on July 15, 2016, and uses it to host adult-oriented content.
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 Panel finds that Complainant has rights in the ŌURA mark under Policy ¶ 4(a)(i) based on registration with the United States Patent and Trademark Office (“USPTO”.) See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). The Panel also notes that Complainant has been in business since 2013 and holds international Trademark Registrations dating back to February 27, 2015.
Respondent’s <ourasus.com> domain name incorporates Complainant’s ŌURA mark, and adds an “s,” a geographic indicator, and the “.com” gTLD. These changes do not distinguish a complainant’s mark from a disputed domain name under Policy ¶ 4(a)(i). See Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”); see also Dell Inc. v. SNAB Corporation, FA 1785051 (Forum May 30, 2018) (finding the inclusion of a geographic term did not distinguish the domain name and increased possible confusion, as “[t]he geographic term “hyderabad” is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India.”). Therefore, the Panel finds that Respondent’s <ourasus.com> domain name is confusingly similar to Complainant’s ŌURA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 <ourasus.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s ŌURA mark. The WHOIS information lists the registrant of the disputed domain name as “Unknown Unknown.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ (c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant argues that Respondent does not use the <ourasus.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and demonstrates that it is used to display adult-oriented material. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <ourasus.com> domain in bad faith to host adult-oriented material for commercial gain. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iv). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied 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 <ourasus.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 22, 2021
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