Wellvation LLC v. Shereea Seals
Claim Number: FA2003001887297
Complainant is Wellvation LLC (“Complainant”), represented by Lauren M. Weber of Felhaber Larson, Minnesota, United States. Respondent is Shereea Seals (“Respondent”), California, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <welllvation.com> (‘the Domain Name’), registered with Google 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 6, 2020; the Forum received payment on March 9, 2020.
On March 9, 2020, Google LLC confirmed by e-mail to the Forum that the <welllvation.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 March 11, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 31, 2020 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@welllvation.com. Also on March 11, 2020, 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 April 5, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark WELLVATION registered in the USA for fitness consultancy services with first use recorded as 2007.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s WELLVATION trade mark adding only an extra letter ‘L’ which does not prevent said confusing similarity.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used for phishing e-mails using the name of the Complainant’s CEO which cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is also bad faith registration and use. Typosquatting is bad faith per se.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark WELLVATION, registered in the USA for fitness consultancy services with first use recorded as 2007.
The Domain Name registered in 2020 has been used to send phishing e-mails using the name of the Complainant’s CEO.
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”).
Identical and/or Confusingly Similar
The Domain Name consists of a misspelling of the Complainant’s WELLVATION mark (registered, inter alia, in the USA for fitness consultancy services with first use recorded as 2007) and the gTLD “.com”. The Panel agrees that misspellings such as addition of a letter or letters, in this case an additional letter ‘L’, does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v Zhang qin, FA 1626511 (Forum Aug 4, 2015).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent e-mail scheme using the Complainant’s mark and the name of the Complainant’s CEO. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a noncommercial legitimate or fair use. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
Typosquatting, the practice of registering a domain name containing common typing errors in a complainant’s mark, can indicate a lack of rights and legitimate interests in a domain name under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The mimicking by the Respondent of the Complainant in fraudulent e-mails shows that the Respondent was aware of the Complainant and its business and rights and constitutes passing off. Impersonating a complainant by use of a complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy ¶ 4(b)(iii).)
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶ 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 <welllvation.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 5, 2020
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