HigherDose, LLC v. rania afaf, rixro
Claim Number: FA2204001992283
Complainant is HigherDose, LLC (“Complainant), represented by Marc Ackerman of BASS BERRY & SIMS PLC, New York, USA. Respondent is rania afaf, rixro (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <higherdose.us>, registered with NameCheap, Inc.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 13, 2022. The Forum received payment on April 13, 2022.
On April 14, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <higherdose.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 2022 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@higherdose.us. Also on April 15, 2022, 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 May 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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, HigherDose, LLC, is one of the world’s premier providers of infrared saunas, infrared sauna blankets and at-home spa products. Complainant has rights in the HIGHER DOSE mark based upon registrations with the United States Patent and Trademark Office (“USPTO”) and other trademark agencies worldwide. Respondent’s <higherdose.us> domain name is confusingly similar to Complainant’s mark
Respondent does not have rights or legitimate interests in the <higherdose.us> domain name. Respondent is not licensed or authorized to use Complainant’s HIGHER DOSE mark and is not commonly known by the domain name. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to engage in a phishing scam.
Respondent registered or uses the <higherdose.us> domain name in bad faith. Respondent uses the domain name to divert Complainant’s potential site visitors for its own profit. Additionally, Respondent had actual and/or constructive knowledge of Complainant’s rights in the HIGHER DOSE mark. Finally, Respondent used a privacy service when registering the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 has shown that it has rights in the HIGHER DOSE word mark based upon registration with the USPTO (e.g., Reg. No. 5,481,364, registered May 29, 2018) and other trademark agencies worldwide. Complainant also has rights in a design mark consisting of “a large triangle overlapping a smaller triangle, both inside of a circle”, USPTO Reg. No. 5,667,256, registered on January 29, 2019.
The Panel finds Respondent’s <higherdose.us> domain name to be identical to Complainant’s word mark because it contains the HIGHER DOSE mark in its entirety, merely adding the inconsequential country code top-level domain (“ccTLD”) “.us”, which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy provides:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
i. You are the owner or beneficiary of a trade or service mark that is identical to the domain name;
ii. Before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
iii. You (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
iv. You are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The <higherdose.us> domain name was registered on October 13, 2021. It resolves to a website prominently displaying both Complainant’s design mark and its word mark; advertising for sale products of the kind sold by Complainant; and providing as its contact email address the email address of Complainant.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <higherdose.us> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Paragraph 4(b) of the Policy provides:
“For the purposes of Paragraph 4(a)(1)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration or use of a domain name in bad faith:
i. Circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name;
ii. You have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name;
iii. You have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv. By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on- line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was aware of Complainant’s word and design marks when Respondent registered the <higherdose.us> domain name and that Respondent did so in bad faith primarily for the purpose of disrupting the business of Complainant. This demonstrates registration in bad faith under Policy ¶ 4(b)(iii).
The Panel is also satisfied that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the goods promoted on that website.
This demonstrates use in bad faith under Policy ¶ 4(b)(iv)
Complainant has established this element.
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <higherdose.us> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: May 16, 2022
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