Blink Health Inc. v. carl oben
Claim Number: FA2106001951157
Complainant is Blink Health Inc. (“Complainant”), represented by AJ Schumacher of Foley & Lardner LLP, Illinois, USA. Respondent is carl oben (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhealth.store>, registered with NameCheap, Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 15, 2021; the Forum received payment on June 15, 2021.
On June 16, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <blinkhealth.store> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 16, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 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@blinkhealth.store. Also on June 16, 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.
Respondent did not submit a formal reply, however it did send an email to the Forum on June 17, 2021, see below.
On July 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it operates an innovative, first-of-its-kind online platform that allows patients to purchase their prescription medications online at discounted prices and then pick the medications up at their local pharmacy or have them delivered directly to their door. Since its founding in 2014, Complainant has been using technology to disrupt the traditional—and expensive—prescription drug paradigm and to “cure the disease” of high cost prescription medications by making the medications more affordable and accessible for millions of Americans. Today, Complainant offers discounted prescription prices on over 15,000 medications and has a network of over 35,000 participating pharmacies across the country, including in major national retailers like Walmart, Safeway, Kroger, Costco, and Publix, among many others. Complainant has rights in the BLINK HEALTH mark through its registration in the United States in 2017.
Complainant alleges that the disputed domain name is identical to its BLINK HEALTH mark because it incorporates the mark in its entirety and merely adds the “.store” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and Respondent is not licensed to use Complainant’s BLINK HEALTH mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because the resolving website offers for sale products that compete with those of Complainant. However, the resolving website indicates that visitors can “buy drugs without prescription” and that visitors “DO NOT Need a Prescription to Order from us,” all while allegedly offering various medications that require prescriptions, such as Oxycodone, Percocet, and Adderall, for delivery in at least the United States and Canada. It is illegal in the USA to offer to sell prescription drugs without a prescription, and the US FDA has issued various warning letters to various website operators allegedly operating these types of online pharmacies advising on this illegal conduct. Thus, the disputed domain name is used for an illegal activity and in a nefarious and illegal scheme to collect personal information and financial payments from Internet visitors happening upon the resolving website, some of whom may have actually been looking for Complainant’s official website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses it to pass off as Complainant in an attempt to phish for financial payments and personal information while illegally advertising products that compete with those of Complainant. Respondent acted with actual knowledge of Complainant’s rights in the BLINK HEALTH mark.
B. Respondent
Respondent makes no contentions to Complainant’s arguments. In its email to the Forum, Respondent states, in pertinent part: “Hello I have taken down the site. The domain was a request made by a client. So I have taken down the site and I am willing to do a domain transfer to the rightful owner.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, both parties have asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <blinkhealth.store> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 12, 2021
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