Oura Health Oy v. Rudenko Aleksey Dmitrievich
Claim Number: FA2302002032459
Complainant is Oura Health Oy (“Complainant”), represented by Brittany Colton of Holland & Hart LLP, USA. Respondent is Rudenko Aleksey Dmitrievich (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oura-ring.com>, registered with Regional Network Information Center, JSC dba RU-CENTER.
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on February 17, 2023; Forum received payment on February 17, 2023.
On February 22, 2023, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to Forum that the <oura-ring.com> domain name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 February 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 2023 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@oura-ring.com. Also on February 27, 2023, 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. On February 27, 2023, Respondent sent an email to Forum.
Complainant’s Supplemental Submission was received by Forum on March 21, 2023. On March 22, 2023, Respondent sent a further email to Forum.
On March 29, 2023, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that 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, 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, Oura Health Oy, is a health and wellness company and its most well-known product, the Oura Ring, is a wearable, smart tech accessory that was launched in 2015. Complainant has rights in the trademark OURA (also stylized ŌURA) through numerous trademark registrations, the first of which (Reg. No. 013783618) was registered with the European Union Intellectual Property Office (“EUIPO”) on October 29, 2015. Respondent’s <oura-ring.com> domain name, registered on December 6, 2022, is identical or confusingly similar to the OURA mark as it merely adds the generic term “ring” which relates to Complainant’s business, a hyphen, and a gTLD.
Respondent lacks rights or legitimate interests in the <oura-ring.com> domain name since Respondent is not licensed or authorized to use Complainant’s OURA mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent’s website attempts to install malware on users’ computers, fraudulently impersonates Complainant, uses copyrighted content from Complainant’s own website, and seeks to obtain personal and financial information from consumers.
Respondent registered and uses the <oura-ring.com> domain name in bad faith by fraudulently impersonating Complainant. In addition, Respondent’s website attempts to install malware. Finally, Respondent had actual knowledge of Complainant’s rights in the OURA mark at the time that it registered the disputed domain name.
B. Respondent
The Forum received an email from Respondent, dated February 27, 2023, which states, in full:
Greetings, I have never dealt with such disputes and I was asked to buy this domain name and paid me $100 for it. If the dispute is that I illegally violated the rights of another company, then I apologize, but I personally did not use this domain name. If you need to transfer the domain to the owner of the rights that have been violated, I can do it without any problems, just tell me how. I can’t pay commission for arbitrators because I don’t have money for this. If Oura had contacted me beforehand, I would have immediately given away this domain. I am an honest and decent person, I didn't know it was illegal, once again I apologize to Oura company.
C. Additional Submissions
On March 21, 2023, the Forum received “Complainant Supplemental Submission” which recites Respondent’s above email and asserts that “the foregoing correspondence further substantiates grounds for a decision in English ordering transfer of the Disputed Domain Name….” It also asserts that “Respondent has effectively consented to transfer. In cases where Respondent has not contested the transfer of the Disputed Domain Names, but instead agrees to transfer it to Complainant, the Panel is authorized to forego the traditional UDRP analysis and order the transfer of the Domain Name.”
On March 22, 2023, the Forum received a second email from Respondent which states, in full:
Hello again, I don't quite understand what is written in the file, but
1) You can contact me through the domain name registrar, there is a contact button, I would give the domain without any problems
2) I once again apologize for this situation, as I did not mean to violate anyone's rights
3) I went to the domain name registrar and asked to cancel my registration, but unfortunately they said that this is not possible due to a block from you
4) I am ready to transfer this domain name to your company at any time
Thank you!
Although Respondent’s actions, as supported by the presented evidence, represent a violation of the Policy, both parties to these proceedings have requested that the disputed domain name be transferred to Complainant and so the Panel has ordered the same.
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.”
Preliminary Issue – Language of the Proceedings
The Panel notes that the Registration Agreement for the disputed domain name is written in Russian, thereby initially making this the language of the proceedings pursuant to Rule 11(a). However, Complainant requests that this Panel exercise its discretion, under Rules 10(b) and (c) and determine that English be the language of the proceedings. In support of its request, Complainant makes a number of claims including that the “trademark, OURA, which is a fanciful, coined term that appears in Latin characters, not Cyrillic”, “Respondent’s website references, in English, Complainant’s product”, “the Disputed Domain Name now generates, in English, a login prompt”, and that Respondent’s emails to the Forum, which are in English, “further substantiates grounds for a decision in English….” The Panel notes that Respondent’s emails do appear entirely in English and display a facility with this language. Finally, Complainant claims that “submitting the filings in Russian would impose a significant burden on Complainant as well as increase the costs and duration of this proceeding”. In FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) the Panel found it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English. In light of the above-mentioned facts and assertions, the Panel determines that these proceedings may be conducted in English without prejudice to the Respondent.
Preliminary Issue – Consent to Transfer
The Panel notes that, in a circumstance such as this where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name to Complainant, it may decide to forego the traditional UDRP analysis and order an immediate transfer of the disputed domain name. See 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 Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . 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 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.”).
Respondent’s actions, as supported by Complainant’s submitted evidence, represent a violation of the Policy. However, in light of the correspondence sent to the Forum by Respondent, as noted above, and as Complainant has expressly stated its willingness for the Panel to forego the traditional UDRP analysis, the Panel has determined that it is not necessary to analyze the present case under the elements of the UDRP.
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oura-ring.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: March 30, 2023
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