Brookdale Senior Living Inc. v. Marvin Jolly
Claim Number: FA1712001760985
Complainant is Brookdale Senior Living Inc. (“Complainant”), represented by Martha B. Allard of Bass, Berry & Sims PLC, Tennessee, USA. Respondent is Marvin Jolly (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brookdalebenefits.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 1, 2017; the Forum received payment on December 1, 2017.
On December 5, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <brookdalebenefits.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 December 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 2017 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@brookdalebenefits.com. Also on December 5, 2017, 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 January 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Brookdale Senior Living Inc., is the largest owner/operator of senior living communities in the United States and is the leading provider of senior-related services throughout the country. Complainant uses its BROOKDALE mark to promote its services including senior residential retirement, independent living, assisted living, and contract food services for senior residential retirement facilities. Complainant registered the BROOKDALE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,007,286, registered Oct. 18, 2005). See Compl. Exs. A–D. Respondent’s <brookdalebenefits.com> domain name is confusingly similar to Complainant’s mark because it appends the non-distinctive term “benefits” and the generic top-level domain (“gTLD”) “.com” to the fully incorporated BROOKDALE mark.
Respondent does not have rights or legitimate interests in the <brookdalebenefits.com> domain name. Complainant has not licensed or otherwise authorized Respondent to use its BROOKDALE mark in any fashion, and Respondent is not commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the <brookdalebenefits.com> domain name to divert Internet users to its website where users are prompted to provide personal information under the false belief that the site is affiliated with Complainant’s business.
Respondent registered and used the <brookdalebenefits.com> domain name in bad faith. Respondent uses the domain name to create a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain. Respondent creates this confusion in users to conduct a fraudulent phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <brookdalebenefits.com> domain name on January 6, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that the disputed domain name, <brookdalebenefits.com>, is confusingly similar to Complainant’s valid and subsisting trademark, BROOKDALE. Complainant has adequately pled its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by taking the trademark in its entirety and appending the generic word “benefits” and the g TLD “.com” to the mark. This is insufficient to distinguish the disputed domain name from this trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Most importantly, Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Complainant claims that Respondent uses the <brookdalebenefits.com> domain name to divert Internet users to its website featuring Complainant’s mark to carry out a phishing scheme. Use of a domain name to pass off as a complainant and phish for Internet users’ personal information is not considered to mark a bona fide offering of goods or services or legitimate noncommercial or fair use. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017) (“A complainant can use assertions of passing off and offering competing goods or services to evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use.”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant claims that screenshots of the <brookdalebenefits.com> domain name’s resolving website indicate that the site prominently features Complainant’s BROOKDALE mark and prompts Internet users to provide personal information under their false belief that the site is affiliated with Complainant. See Compl. Ex. E. Specifically, Complainant alleges that the site asks for Internet users’ email address, phone number, and name, as well as their current “Brookdale” status. Id.
Therefore, the Panel finds that Respondent is not using the <brookdalebenefits.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use and, therefore, lacks any rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and used the <brookdalebenefits.com> domain name in bad faith by creating a likelihood of confusion with Complainant’s mark for Respondent’s commercial gain. Use of a domain name to create confusion as to the source, sponsorship, affiliation, or endorsement to the content therein can evidence bad faith. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Complainant claims that screenshots of the <brookdalebenefits.com> domain name’s resolving website features Complainant’s BROOKDALE mark and purports to offer services associated with Complainant’s senior living services business. See Compl. Ex. E.
Therefore, the Panel finds that Respondent uses the domain name to create confusion in users seeking Complainant in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Complainant argues that Respondent is using the domain name to conduct a phishing scheme. Use of a domain name to conduct a phishing scheme can demonstrate bad faith registration and use. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). As mentioned previously, Complainant alleges that screenshots of the disputed domain name’s resolving website indicate that Internet users are prompted to supply personal information under the belief that they are visiting a website affiliated with Complainant’s business. See Compl. Ex. E. Therefore, the Panel finds that that Respondent attempts to phish for users’ information in bad faith pursuant to Policy ¶ 4(a)(iii).
Given the nature of the use of Complainant’s trademark by Respondent and the totality of the circumstances, the Panel also finds that Respondent proceeded with prior actual knowledge of Complainant’s trademark and its rights thereto.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <brookdalebenefits.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 3, 2018
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