Micha Advanced Health dba LEMYKA v. Shanshan Huang / This domain name is for sale
Claim Number: FA1802001772893
Complainant is Micha Advanced Health dba LEMYKA (“Complainant”), represented by Jing Chen, California, USA. Respondent is Shanshan Huang / This domain name is for sale (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lemyka.com>, registered with GoDaddy.com, 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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 21, 2018; the Forum received payment on February 21, 2018
On February 23, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <lemyka.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2018 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@lemyka.com. Also on March 1, 2018, 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 March 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 offers safe and natural skin care products to bring long-term relief against skin conditions and disorders. Since inception, Complainant has worked to create innovative skincare products that are natural and safe. Complainant has rights in the LEMYKA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,931,564, registered Apr. 5, 2016). Complainant filed the trademark application with the USPTO on June 23, 2015. Respondent’s <lemyka.com> domain name is identical to Complainant’s mark.
Respondent has no rights or legitimate interests in the <lemyka.com> domain name. Respondent lists the domain name for sale, and only has a financial interest in selling the domain name. Further, Respondent registered the domain name using false contact info, as the address is not a real address in China.
Respondent registered and uses the <lemyka.com> domain name in bad faith. Respondent lists the domain name for sale on sedo.com for a price of $7,500.00. Further, the website is merely an inactive, parked webpage.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the <lemyka.com> domain name on June 27, 2015.
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 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 (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.”).
Complainant has rights in the LEMYKA mark through its registration of the mark with the USPTO (e.g. Reg. No. 4,931,564, registered Apr. 5, 2016). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”). Further, Complainant claims that it filed its trademark application with the USPTO on June 23, 2015. The relevant date for acquiring rights in a registered mark is the application filing date. See ADP, LLC v. Dennis Shifrin / Streamline, FA 1732114 (Forum June 13, 2017) (“the relevant date for Complainant’s mark is the filing date.”). Accordingly, the Panel finds that Complainant has established rights in the LEMYKA mark for the purposes of Policy ¶ 4(a)(i), dating back to June 23, 2015.
Complainant next argues that Respondent’s <lemyka.com> domain name is identical to Complainant’s mark. The Panel agrees and finds that the <lemyka.com> domain name is identical to the LEMYKA mark under Policy ¶4(a)(i).
Complainant does not make any contentions as to whether Respondent is commonly known by the <lemyka.com> domain name. The Panel notes that
WHOIS information can help determine whether a Complainant was commonly known by a domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Shanshan Huang / This domain name is for sale” as the registrant. Accordingly, the Panel holds that Respondent does not appear to be commonly known by the at-issue domain name under Policy ¶ 4(c)(ii).
Complainant claims that Respondent lists the <lemyka.com> domain name for sale, and only has a financial interest in selling the domain name. Offering a confusingly similar or identical domain name for sale to the public can evince a lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”). Complainant provides a screenshot of the resolving domain associated with the domain name, which contains the message “”The owner of lemyka.com is offering it for sale for an asking price of 7500 USD!” As such, the Panel finds that Respondent offers for sale the disputed domain name, which is identical to the registered trademark, which is indicative of possessing no rights and legitimate interests under Policy ¶ 4(a)(ii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent lists the domain name for sale on sedo.com for a price of $7,500.00. Offering a confusingly similar domain name for sale can evince bad faith registration under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant provides a screenshot of the landing page, which is a parked page with the only content displayed being an offer to sell the domain name for $7,500.00. Accordingly, the Panel finds Respondent’s offering of a domain name, which is identical to Complainant’s registered trademark, for sale to the general public to constitute evidence of bad faith under Policy ¶ 4(b)(i).
Further, Complainant has provided evidence that the website is merely an inactive, parked webpage. Failing to use a domain name, which is identical to a registered trademark, in connection with an active webpage can evince bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel agrees that Respondent fails to make an active use of the domain name in bad faith under Policy ¶ 4(a)(iii).
Thus, Complainant has also satisfied 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 <lemyka.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: April 9, 2018
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