Blink Health Inc. v. Corey Cotts
Claim Number: FA2207002003872
Complainant is Blink Health Inc. ("Complainant"), represented by Robert Weisbein of Foley & Lardner LLP, New York, USA. Respondent is Corey Cotts ("Respondent"), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhealth.shop>, registered with NameSilo, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 12, 2022; the Forum received payment on July 12, 2022.
On July 12, 2022, NameSilo, LLC confirmed by email to the Forum that the <blinkhealth.shop> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 July 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@blinkhealth.shop. Also on July 14, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 August 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 operates an online platform that allows patients to purchase prescription medications online and either have them delivered or pick them up at one of more than 35,000 participating pharmacies across the United States. Complainant has used the BLINK and BLINK HEALTH marks in connection with this business since 2015 and owns United States trademark registrations for both marks in standard character form.
The disputed domain name <blinkhealth.shop> was registered in May 2022. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name does not resolve to a website. Complainant states that Respondent is not commonly known by the domain name, is not a licensee or affiliate of Complainant, and is not authorized to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <blinkhealth.shop> is identical or confusingly similar to its BLINK and BLINK HEALTH marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <blinkhealth.shop> corresponds to Complainant's registered BLINK HEALTH trademark, with the space omitted and the ".shop" top-level domain appended thereto. Such alterations are normally disregarded for purposes of assessing identicality or similarity under paragraph 4(a)(i) of the Policy. See, e.g., Lemonaid Health, Inc. v. John Lunde, FA 1981449 (Forum Feb. 23, 2022) (finding <lemonaidhealth.shop> confusingly similar to LEMONAID HEALTH); Blink Health Inc. v. Elegance IT, FA 1960051 (Forum Sept. 21, 2021) (finding <blinkhealth.top> confusingly similar to BLINK HEALTH); Otter Products, LLC v. Robot Flower, FA 1771989 (Forum Mar. 13, 2018) (finding <otterbox.shop> identical to OTTERBOX and OTTER BOX); Novant Health, Inc. v. PPA Media Services / Ryan G Foo, FA 1497428 (Forum June 14, 2013) (finding <novanthealth.com> identical to NOVANT HEALTH). The Panel considers the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and there is no indication that Respondent has made any active use of the domain. Such circumstances suggest that Respondent lacks rights or legitimate interests. See, e.g., Lemonaid Health, Inc. v. John Lunde, supra (finding lack of rights or interests in similar circumstances); Otter Products, LLC v. Robot Flower, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "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 [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's registered mark. The underlying registration data provided by Respondent appear to be internally inconsistent and likely fictitious. Respondent does not appear to have made any active use of the domain name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name or by using it to attract Internet users seeking Complainant, and that Respondent is maintaining the domain name for that purpose. See, e.g., Medline Industries, L.P. v. Erica Brooks / Medline industries, FA 1995846 (Forum June 9, 2022) (finding bad faith registration and use in similar circumstances); Otter Products, LLC v. Robot Flower, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkhealth.shop> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 10, 2022
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