Fitness International, LLC v. Lara Almeida
Claim Number: FA2204001992775
Complainant is Fitness International, LLC (“Complainant”), represented by Kristin Kosinski of Cislo & Thomas LLP, California, USA. Respondent is Lara Almeida (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lafitnessbalance.com>, registered with Launchpad.com 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 April 18, 2022; the Forum received payment on April 18, 2022.
On April 18, 2022, Launchpad.com Inc. confirmed by e-mail to the Forum that the <lafitnessbalance.com> domain name is registered with Launchpad.com Inc. and that Respondent is the current registrant of the name. Launchpad.com Inc. has verified that Respondent is bound by the Launchpad.com 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 April 20, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 2022 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@lafitnessbalance.com. Also on April 20, 2022, 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 May 13, 2022, 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 offers fitness services. Complainant has been providing a superior fitness experience since 1988 and is currently using its mark and operating nationwide in over twenty (20) states. Its facilities contain state of the art equipment and cardio areas, and there are group fitness classes offered throughout the day, including specialty classes such as yoga, cycling, mat pilates, kickbox cardio, aqua aerobics, and more, along with personal training services, and racquetball and basketball courts. Complainant’s LA FITNESS clubs are premier health clubs that receive consistent and laudable recognition and accolades from consumers as the best fitness centers and health clubs in several geographic areas. Furthermore, Complainant advertises in the United States and Canada via its Internet website, <www.lafitness.com>. This website also provides information about its fitness centers and health clubs, its group fitness and personal training opportunities, member tools, and social media links including a podcast and a blog on fitness, nutrition, and motivation. Complainant asserts rights in the LA FITNESS mark based upon its registration in the United States in 2000.
Complainant alleges that the disputed domain name is confusingly similar to its LA FITNESS mark because it contains the mark in its entirety, merely eliminating the spacing, adding the generic term “balance”, and adding the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s LA FITNESS mark and is not commonly known by the disputed domain name. The disputed domain name is not used for any bona fide offering of goods or services or any legitimate non commercial or fair use. Instead, the resolving website offers services that compete with those of Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s business and attract users for commercial gain by offering competing services at the resolving website. Additionally, Respondent did not respond to Complainant’s cease-and-desist letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark LA FITNESS dating back to 2000.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that advertises services that compete with those of Complainant.
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 disputed domain name contains Complainant’s LA FITNESS mark in its entirety, merely eliminating the spacing, adding the generic term “balance”, and adding the gTLD “.com”. The addition of generic or descriptive terms and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). Likewise, the removal of spacing is not considered sufficient to differentiate a disputed domain name from a mark. See Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“The … elimination of spacing [is] considered irrelevant when distinguishing between a mark and a domain name.”). Therefore the Panel finds that the <lafitnessbalance.com> domain name is confusingly similar to Complainant’s LA FITNESS mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s LA FITNESS mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “Lara Almeida”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website advertises services that compete with those of Complainant. Use of a disputed domain name to offer competing services is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use). Thus the Panel finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers competing services. Use of a disputed domain name to offer competing services is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lafitnessbalance.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 13, 2022
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