FirstLight Homecare Franchising, LLC v. Domain Administrator / See PrivacyGuardian.org
Claim Number: FA1908001858701
Complainant is FirstLight Homecare Franchising, LLC (“Complainant”), represented by Sheldon Klein of Gray Plant Mooty, United States of America. Respondent is Domain Administrator / See PrivacyGuardian.org (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <firstlighhomecare.com>, registered with NameSilo, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 22, 2019; the Forum received payment on August 22, 2019.
On August 23, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <firstlighhomecare.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 August 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 2019 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@firstlighhomecare.com. Also, on August 29, 2019, 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 September 19, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 is a franchise business that provides home care and personal care services. Complainant has rights in the FIRSTLIGHT HOMECARE mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,948,890, registered Apr. 19, 2011). Respondent’s <firstlighhomecare.com> domain name is confusingly similar to Complainant’s FIRSTLIGHT HOMECARE mark as it fully incorporates dominant portions of the mark, merely typosqatting by deleting the letter “t,” and adding the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <firstlighhomecare.com> domain name. Respondent is not licensed or authorized to use Complainant’s FIRSTLIGHT HOMECARE mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to host a sports betting website in Mandarin, presumably illegal conduct, in order to collect fees. Furthermore, Respondent’s typosquatting of Complainant’s mark is also indicative of its lack of rights or legitimate interests.
Respondent registered and uses the <firstlighhomecare.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where it collects fees from an online, sports betting website. Furthermore, Respondent engaged in typosquatting when it registered the disputed domain name. Finally, Respondent had actual and/or constructive knowledge of Complainant’s rights in the FIRSTLIGHT HOMECARE mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is FirstLight Homecare Franchising, LLC (“Complainant”), of Cincinnati, OH, USA. Complainant is the owner of the 2011 domestic registration for the mark FIRSTLIGHT HOMECARE, which it has continuously used since at least as early as 2010 in connection with the marketing of its home care and personal care services throughout the USA. Complainant is also the owner of the 2010 registered domain name <firstlighthomecare.com>.
Respondent is Domain Administrator / See PrivacyGuardian.org (“Respondent”), of Phoenix, AZ, USA. Respondent’s registrar’s address is listed as the same. The Panel notes that the <firstlighhomecare.com> domain name was registered on or about February 3, 2016.
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 claims rights in the FIRSTLIGHT HOMECARE mark based upon registration of the mark with the USPTO (e.g., Reg. No. 3,948,890, registered Apr. 19, 2011). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel here finds that Complainant’s registration of the FIRSTLIGHT HOMECARE mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <firstlighhomecare.com> domain name is confusingly similar to the FIRSTLIGHT HOMECARE mark, as the name incorporates the mark in its entirety, merely omitting the letter “t,” and adds a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) (“Respondent’s <morganstanle.com> domain name is confusingly similar to Complainant’s MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter ‘y’ and spacing within the mark and appends the ‘.com’ gTLD.”). The Panel here finds that the <firstlighhomecare.com> domain name is confusingly similar to the FIRSTLIGHT HOMECARE mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <firstlighhomecare.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the FIRSTLIGHT HOMECARE mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Domain Administrator / See PrivacyGuardian.org,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel finds that under Policy ¶ 4(c)(ii), Respondent has not been commonly known by the <firstlighhomecare.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <firstlighhomecare.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends Respondent uses the disputed domain name to redirect users to its own website, for commercial gain, which features an online sports betting service. Complainant claims Respondent likely collects fees from users who visit or engage with the website’s content. Use of a disputed domain name to divert users for commercial gain, especially where its content may contain illegal content, is generally not a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Nintendo of America Inc. v. Dajana Shawn, FA 1798791 (Forum Sep. 4, 2018) (“The use of a Domain Name to promote illegal products or services is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii)).”); see also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Complainant provides a screenshot of the disputed domain name’s resolving website, most of which is in Mandarin (as Complainant claims), and offers an unrelated, sports betting service. Complainant further contends that this use may be illegal. The Panel here finds that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) or (iii)
Furthermore, Complainant contends that Respondent’s lack of rights or legitimate interests is demonstrated by its typosquatting of the <firstlighhomecare.com> domain name. Typosquatting may evince a finding that the respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). The Panel recalls Complainant’s assertions that the disputed domain name contains the FIRSTLIGHT HOMECARE mark, merely omitting the letter “t.” The Panel here finds that Respondent has engaged in typosquatting, which supports a finding that it lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant also contends Respondent’s intentional use of the <firstlighhomecare.com> domain name to create a likelihood of confusion with Complainant’s mark in order to attract Internet users for commercial gain is evidence of Respondent’s bad faith. Use of a confusingly similar domain name for commercial purposes unrelated to a complainant’s business can indicate bad faith registration and use per Policy ¶¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). The Panel again notes Complainant’s evidentiary exhibits indicating that the <firstlighhomecare.com> domain name resolves to a website, most of which is in Mandarin, that offers an unrelated, sports betting service. The Panel here finds that the evidence indicates Respondent registered and used the at-issue domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant also claims that Respondent’s registration of the <firstlighhomecare.com> domain name constitutes typosquatting, which is further evidence of bad faith. Minor misspellings of a complainant’s fully incorporated mark may suggest bad faith registration under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). The Panel again notes Complainant’s assertions that the disputed domain name contains the FIRSTLIGHT HOMECARE mark, merely omitting the letter “t.” The Panel here finds that Respondent engages in typosquatting, which constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <firstlighhomecare.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: October 3, 2019
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