Blink Health Inc. v. Elegance IT
Claim Number: FA2108001960051
Complainant is Blink Health Inc. (“Complainant”), represented by AJ Schumacher of Foley & Lardner LLP, Illinois, USA. Respondent is Elegance IT (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <blinkhealth.top>, registered with Eranet International Limited.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2021; the Forum received payment on August 17, 2021.
On August 23, 2021, Eranet International Limited confirmed by e-mail to the Forum that the <blinkhealth.top> domain name is registered with Eranet International Limited and that Respondent is the current registrant of the name. Eranet International Limited has verified that Respondent is bound by the Eranet International Limited 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 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 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.top. Also on August 26, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 20, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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, Blink Health Inc., operates an online pharmaceutical company allowing consumers to legally order prescription drugs online.
Complainant has rights in the BLINK HEALTH mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <blinkhealth.top> domain name is identical to Complainant’s BLINK HEALTH mark, merely removing a space and adding the “.top” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <blinkhealth.top> domain name as it is not commonly known by the at-issue domain name and is neither an authorized user nor licensee of the BLINK HEALTH mark. Additionally, Respondent does not use the domain name for either a bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses its <blinkhealth.top> domain name to pass itself off and compete with Complainant’s business and engage in a fraudulent and illegal scheme which, inter alia, purports to dispense prescription drugs without a prescription.
Respondent registered and uses the <blinkhealth.top> domain name in bad faith. Respondent uses the domain name to pass itself off as Complainant and offer services which compete directly with Complainant. Such use may demonstrate bad faith disruption and attraction for commercial gain. Furthermore, Respondent appears to use the at-issue domain name to operate a phishing scheme. Additionally, Complainant contends that Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the BLINK HEALTH mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the BLINK HEALTH mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the BLINK HEALTH trademark.
Respondent uses the at-issue domain name to address a web presence illegally offering competing services.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the BLINK HEALTH mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <blinkhealth.top> domain name consists of Complainant’s BLINK HEALTH trademark less its domain name impermissible space, followed by the top-level domain name “.top.” Under the Policy the slight differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the <blinkhealth.top> domain name from the BLINK HEALTH mark. Therefore, the Panel concludes that Respondent’s <blinkhealth.top> domain name is confusingly similar to Complainant’s BLINK HEALTH trademark. See KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”); see also Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <blinkhealth.top> indicates that “Elegance IT” is the domain name’s registrant. There is nothing in the record before the Panel that indicates that Respondent is otherwise known by the <blinkhealth.top> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain name to pass itself off as Complainant and to compete with Complainant’s business. Respondent uses the domain name as part of an illegal and fraudulent scheme whereby Respondent offers prescription pharmaceuticals without requiring a prescription. Additionally, webpages addressed by Respondent’s at-issue domain name allow visitors to divulge private data and make payments in furtherance of Respondent’s bogus online business. Respondent’s use of the <blinkhealth.top> domain name in this manner is not indicative of a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Blink Health Inc. v. Smith, FA2005001898326; Blink Health Inc. v. Raoual, FA2008001910379; Walgreen Co. v. Accute, FA2011001919687 (Forum Dec. 14, 2020) (finding no rights or legitimate interests when the disputed domain name resolved to a website allegedly offering medications without prescription in a manner that impersonated complainant);see also Coryn Group, Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert internet users to a website that offered services that competed with those offered by the complainant under its marks.); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also, Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <blinkhealth.top> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue domain to pass itself off as Complainant and compete with Complainant. Respondent’s use of the confusingly similar <blinkhealth.top> domain name in such manner shows Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
Next, Complainant proffers screenshots of webpages addressed by the at-issue domain name whereon internet users may input their name, email address, and other information. Respondent’s collecting of private information through its <blinkhealth.top> website suggests a phishing scheme and shows Respondent’s bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Furthermore, Respondent’s putative <blinkhealth.top> online drug business appears to be illegal on its face as the <blinkhealth.top> website offers drugs for sale that legally require a prescription without enforcing such requirement. See Emissary Technologies, LLC v. Careright Healthcare, Inc., FA 1451502 (Forum Aug. 8, 2016) (“with no evidence submitted by Respondent to the contrary, Complainant’s contentions that the disputed domain name resolves to a website that appears to offer a legitimate healthcare business but is actually “scam” and to cover up illegal activity constitutes use of the disputed domain name for an illegal purpose, in bad faith according to Policy ¶ 4(a)(iii).).
Finally, Respondent registered its confusingly similar <blinkhealth.top> domain name knowing that Complainant had trademark rights in BLINK HEALTH. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to pass itself off as Complainant and unfairly compete with Complainant’s legitimate online pharmaceutical business. Respondent’s prior knowledge of Complainant's trademark demonstrates that Respondent registered and used its <blinkhealth.top> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 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 <blinkhealth.top> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 21, 2021
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