Life Extension Foundation, Inc. v. Hulmiho Ukolen / Poste restante
Claim Number: FA1507001628843
Complainant is Life Extension Foundation, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, United States. Respondent is Hulmiho Ukolen / Poste restante (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lifeextention.com>, registered with Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 14, 2015; the Forum received payment on July 14, 2015. The Complaint was received in both Finnish and English.
On July 18, 2015, Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com confirmed by e-mail to the Forum that the <lifeextention.com> domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com and that Respondent is the current registrant of the name. Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com 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 July 27, 2015, the Forum served the Finnish language Complaint and all Annexes, including a Finnish language Written Notice of the Complaint, setting a deadline of August 17, 2015 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@lifeextention.com. Also on July 27, 2015, the Finnish 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 August 19, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
Complainant
Complainant is a nonprofit organization which is aimed at identifying and developing new therapies to slow and even reverse the aging process. Complainant markets products such as The Life Extension Foundation Buyers Club and The Life Extension Magazine, through which Complainant creates a comprehensive health management resource and offers a full range of vitamins, minerals and hormones, as well as unique specialty formulas, respectively. Complainant has registered the LIFE EXTENSION mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,394,959, registered March 11, 2008), which demonstrates Complainant’s rights in the mark. The <lifeextention.com> domain name is confusingly similar to Complainant’s mark as it differs by only a single character from Complainant’s mark and includes the addition of the generic top-level domain (“gTLD”) “.com” while eliminating spacing between words of the mark.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name or any derivative of Complainant’s mark. Respondent is not licensed or authorized to use Complainant’s mark. Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Presumably, Respondent receives pay-per-click fees from these linked websites.
Respondent has registered and is using the disputed domain name in bad faith. Respondent has listed the disputed domain name for sale. The WHOIS directory states, “LifeExtention.com is for sale! The owner of the domain you are researching has it listed for sale at $14,900.” Respondent’s pay-per-click links displayed on the resolving website promotes products that compete with Complainant, thereby diverting potential customers away from Complainant to third-party websites. Respondent uses the disputed domain name to provide links to services and products offered by Complainant in an effort to take advantage of Complainant’s well-known mark to achieve a wrongful competitive advantage and commercial gain. Respondent is engaged in the tactic of typosquatting, which may be considered as bad faith registration and use as the elements enumerated in Policy ¶ 4(b) are non-exclusive.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <lifeextention.com> domain name.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
LANGUAGE OF THE PROCEEDINGS
The Registration Agreement is written in Finnish, thereby making Finnish the language of the proceedings.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Finnish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant is a nonprofit organization which is aimed at identifying and developing new therapies to slow the aging process. Complainant markets products such as The Life Extension Foundation Buyers Club and The Life Extension Magazine, through which Complainant creates a comprehensive health management resource and offers a full range of vitamins, minerals and hormones, as well as unique specialty formulas. Complainant has registered the LIFE EXTENSION mark with the USPTO (Reg. No. 3,394,959, registered March 11, 2008). Panels have found that a USPTO registration is sufficient to establish rights in a mark even when a respondent lives or operates in a different country. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Accordingly, the Panel finds that Complainant has demonstrated its rights in the LIFE EXTENSION mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that the <lifeextention.com> domain name is confusingly similar to Complainant’s mark as it differs from Complainant’s mark by only a single character and the addition of the gTLD “.com,” while eliminating spacing between words. Past panels have found confusing similarity between a complainant’s mark and a respondent’s disputed domain name where the respondent’s disputed domain name merely replaces one letter in the complainant’s mark with another. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark). Past panels have also found that the addition of a gTLD and elimination of spacing is irrelevant to a Policy ¶ 4(a)(i) analysis. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Nat. Arb. Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶ 4(a)(i) analysis.”). The Panel therefore finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name or any derivative of Complainant’s mark. The WHOIS information lists “Hulmiho Ukolen / Poste restante” as registrant. Complainant states that Respondent is not licensed or authorized to use Complainant’s mark. Respondent has not submitted any evidence for the Panel’s consideration. Accordingly, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant alleges that Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Complainant claims that Respondent uses the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Complainant’s exhibits demonstrate Respondent’s use of the resolving website to display various hyperlinks to competitors of Complainant, and that Complainant’s home web site is one of the web sites which resolves from the hyperlinks included on the disputed domain name’s resolving page. Complainant argues that Respondent receives pay-per-click fees from these linked websites. Past panels have held that a respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when the website resolving from the disputed domain name displays links to products and services that compete directly with the complainant’s business, or when such links resolve to Complainant’s own website. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Nat. Arb. Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with 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).
Complainant has proved this element.
Complainant states that Respondent has listed the disputed domain name for sale, thereby engaging in conduct proscribed by Policy ¶ 4(b)(i). Complainant’s exhibits demonstrate that Respondent listed the disputed domain name for sale for $14,900.00. Past panels have found that the attempted sale of a domain name is evidence of bad faith. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Therefore, the Panel finds that Respondent has demonstrated bad faith per Policy ¶ 4(b)(i).
Complainant contends that Respondent’s pay-per-click links displayed on the resolving websites promote products that compete with Complainant, thereby diverting potential customers away from Complainant to third-party websites; Complainant argues that Respondent’s behavior constitutes bad faith pursuant to Policy ¶ 4(b)(iii). Panels have agreed with such arguments. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)). The Panel accepts Complainant’s argument that Respondent is attempting to divert potential customers away from Complainant’s website, and concludes that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant argues that Respondent uses the disputed domain name to provide links to services and products offered by Complainant in an effort to take advantage of Complainant’s well-known mark to achieve a wrongful competitive advantage and commercial gain. Specifically, Complainant alleges that Respondent uses the disputed domain name in connection with generating revenue as a “click through” website. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iv) where a respondent’s disputed domain name resolved to a website that offered links to third-party websites that offered products and services similar to the complainant’s. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). Accordingly, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant argues that Respondent has engaged in the tactic of typosquatting by merely replacing the “s” in Complainant’s mark with a “t.” Past panels have found bad faith under Policy ¶ 4(a)(iii) where the respondent has engaged in the practice of typosquatting. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)). The Panel finds that Respondent has engaged in typosquatting, and finds that Respondent registered the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <lifeextention.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: August 21, 2015
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