Blink Health Inc. v. Jitendra Kumar Mishra
Claim Number: FA2109001964037
Complainant is Blink Health Inc. (“Complainant”), represented by Foley & Lardner LLP, Illinois, USA. Respondent is Jitendra Kumar Mishra (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkshealth.com>, registered with Registrar of Domain Names REG.RU LLC.
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 September 16, 2021. The Forum received payment on September 16, 2021. The Complaint was received in English.
On September 20, 2021, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <blinkshealth.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC registration agreement, which is in Russian, 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 September 22, 2021, the Forum served the English language Complaint and all Annexes, including a Russian and English language Written Notice of the Complaint, setting a deadline of October 12, 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@blinkshealth.com. Also on September 22, 2021, the Russian and English language 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 October 18, 2021, 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 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.
Preliminary Issue: Language of Proceeding
As noted, the Registrar of Domain Names REG.RU LLC registration agreement is in Russian. Accordingly, pursuant to Rule 11(a), the language of the proceeding in relation to the <blinkshealth.com> domain name shall be Russian, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, contending that Respondent is proficient in English since the <blinkshealth.com> domain name consists of English language terms and resolves to a website that is entirely in English. Additionally, Complainant argues it would be an undue burden and delay for Complainant to translate the documents into Russian.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant with and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding shall be in English.
A. Complainant
Complainant, Blink Health Inc., provides online pharmacy services to patients. Complainant has rights in the BLINK HEALTH mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <blinkshealth.com> domain name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <blinkshealth.com> domain name. Respondent is not commonly known by the domain name and does not use it for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the typosquatted <blinkshealth.com> domain name to pass itself off as Complainant and to offer apparently competing goods, including, upon information and belief, illegally offering prescription drugs for sale without prescription and phishing for users’ personal and financial information.
Respondent registered the typosquatted <blinkshealth.com> domain name in bad faith with actual knowledge of Complainant’s rights in the BLINK HEALTH mark and uses the domain name in bad faith as described above.
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 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”).
Complainant has rights in the BLINK HEALTH mark based on registrations with the USPTO, including Reg. No. 5,225,684, registered June 20, 2017. The Panel finds Respondent’s <blinkshealth.com> domain name to be confusingly similar to Complainant’s mark as it merely adds to the mark the letter “S”, which is insufficient to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <blinkshealth.com> domain name was registered on October 19, 2020, several years after Complainant has shown that its BLINK HEALTH mark and its website at “www.blinkhealth.com” had become very well-known. It resolves to a website promoting competing, online medication-related solutions to the same or similar consumers through the same or similar trade channels as those targeted and used by 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 <blinkshealth.com> domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). 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.
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s BLINK HEALTH mark when Respondent registered the <blinkshealth.com> domain name and 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 registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <blinkshealth.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 19, 2021
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