DECISION

 

My Healthy Home, LLC v. Joshua Harper / Home Health Experts

Claim Number: FA2411002124448

 

PARTIES

Complainant is My Healthy Home, LLC ("Complainant"), represented by Michael J Feigin of Feigin and Fridman, New Jersey, USA. Respondent is Joshua Harper / Home Health Experts ("Respondent"), represented by John Walsh, Esq. of Drewry Simmons Vornhehm, LLP, Indiana, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <healthyhomeexperts.net>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nathalie Dreyfus as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 12, 2024; Forum received payment on November 12, 2024.

 

On November 14, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <healthyhomeexperts.net> 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 November 15, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 2024 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@healthyhomeexperts.net. Also on November 15, 2024, 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.

 

A timely Response was received and determined to be complete on November 29, 2024.

 

On December 3rd 2024, pursuant to the Parties' requests to have the dispute decided by a single-member Panel, Forum appointed

Nathalie Dreyfus as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant invokes the prior trademark right "HEALTHY HOME EXPERT" No. 4134019, registered May 1, 2012, designating goods and services in classes 35, 37, 41 and 42.

 

Complainant asserts that the Disputed Domain Name <healthyhomeexperts.net> is identical to the trademark HEALTHY HOME EXPERT, excepting the letter "s" at the end, which demonstrates a trademark infringement.

 

Complainant alleges that the abovementioned trademark includes services that are similar to the defendant's websites' advertised services, such as "foundation repair" and "waterproofing", which demonstrated the Respondent's use of the trademark in bad faith.

 

Furthermore, the Respondent registered the domain name on October 25, 2022, ten years after the Complainant began using its trademark. Additionally, it is very unlikely that he was unaware of the existence of the Complainant's identical domain name in <.com> (<healthyhomeexpert.com>).

 

To the Complainant, the identical name, the nearly identical goods offered, and the domain name's registration date, shows the Respondent's bad faith and that he has no legitimate interest to use the domain name.

 

B. Respondent

Respondent contends as follows:

 

Respondent alleges that Complainant fails to prove the risk of confusion between the disputed domain name and Complainant's trademark. Indeed, Respondent contends that the services offered by the registrant's business, Healthy Home Experts LLC, are unrelated to those offered by Complainant.

 

Respondent argues that there is no overlap or direct competition between the two parties' activities. According to him, the two operate in completely distinct industries, serve different consumer needs, and target separate audiences, with no proximity between their services.

 

The evidence provided by Complainant consists of vague screenshots highlighting generic terms like "healthy" and "home," lacking any substantive proof of infringement. Respondent asserts that the Complaint is an attempt to improperly expand rights over the generic phrase "healthy home," which is not exclusively protected by Complainant's trademark registration.

 

According to the Respondent, his rights should be upheld, and Complainant penalized for Reverse Domain-Name Hijacking.

 

FINDINGS

1. The disputed domain name was registered on October 25th, 2022 by the Indiana-based company Home Health Experts.

 

2. Complainant, the My Healthy Home, LLC company owns the United States trademark HEATHY HOME EXPERT since June 12, 2002. The trademark was registered on May 1, 2012, and includes services such as "foundation repair" and "waterproofing".

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.

 

For the reasons stated below, the Panel finds that the Complainant has not proven all three elements by a preponderance of the evidence.

 

Identical and/or Confusingly Similar

Complainant invokes the aforementioned U.S. Trademark "HEALTHY HOME EXPERT".

 

Complainant's trademark registration establishes its trademark rights for the purpose of the Policy. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.2.1.

 

Regarding the similarity, the domain name reproduces the trademark in its entirety, with the mere addition of the letter "s" at the end, which does not prevent any risk of confusion.

 

In a similar WIPO case No. D2000-0503, Uniroyal Engineered Products, Inc. v. Nauga Network Services, the domain name "naugacase.com" was deemed identical to the Complainant's trademark "NAUGACASE", except that (1) the domain name adds the generic top-level domain name ".com", and (2) the domain name employs lower case letters, while the trademark is generally used with an initial capital letter and a capital "C" (i.e., "NaugaCase"). The Panel has determined that the domain names "nauga.net" and "naugacase.com" are confusingly similar to Complainant's trademarks "NAUGA" and "NAUGACASE", respectively, in the sense of paragraph 4(a)(i) of the Policy.

 

Similarly, the Panel here finds that the disputed domain name is confusingly similar to the aforementioned trademark.

 

Accordingly, the Panel finds that the Complainant has established the first element of the Policy.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:

 

(i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

 

(ii) the Respondent has been commonly known by the Disputed Domain Name, even if the Respondent has acquired no trademark or service mark rights; or

 

(iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

The Panel finds there is clear evidence that all of these circumstances apply in this case.

 

Respondent Healthy Home Experts LLC, is an Indiana-based company, which provides construction and home improvement services, such as crawl space waterproofing and structural repairs, with branding prominently displayed on trucks, equipment, and team uniforms. Therefore, the Panel believes that before any notice, Respondent used the Disputed Domain Name in connection with a bona fide offering of goods or services.

 

The domain name is active and used to that end. The Healthy Home Foundation Repair's website has 98 reviews on Google, with a 5-star rating out of 5, which demonstrates consumer recognition and satisfaction. Therefore, Respondent has been commonly known by the Disputed Domain Name.

 

Furthermore, the website's logo and the general appearance of the website significantly differs from Complainant's website or logo. The Panel finds that Respondent did register and used the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Additionally, Complainant has failed to prove the lack of legitimate interest in the disputed domain name, as he only affirms "Registrant has no legitimate right to do so and must have known as such in choosing the domain name".

 

Thus, the Panel finds that Complainant has not established the second element of the Policy.

 

Registration and Use in Bad Faith

Policy Paragraph 4(a)(iii) sets the condition that a Complainant must prove bad faith registration and use of the disputed domain name on the part of the Respondent.

 

In light of the Panel's finding under the second limb, the Panel does not need to consider whether or not the Disputed Domain Name was registered and used in bad faith.

 

REVERSE DOMAIN NAME HIJACKING

Respondent contends that Complaint has been brought in bad faith and, accordingly, Complainant should be sanctioned by a finding of Reverse Domain Name Hijacking.

 

Paragraph 15(e) of the Rules provides that if after considering the submissions the Panel finds that Complaint was brought in bad faith, for example, in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding."  WIPO Overview 3.0, section 4.16.

 

Bad faith is the central element of paragraph 15(e) and is often linked to reverse domain name hijacking (RDNH). The landmark case, Sydney Opera House Trust v. Trilynx Pty. Limited, WIPO Case No. D2000-1224, underscores the need for both bad faith and harassment to establish RDNH. According to the decision, "to establish reverse domain name hijacking, the Respondent must show that Complainant was aware of the Respondent's rights or legitimate interests in the domain name and that Complainant engaged in harassment or similar behavior despite this knowledge."

 

A recurring theme in prior panel decisions is the emphasis on Complainant's awareness—or lack thereof—of their ability to satisfy the burden of proof under paragraph 4 of the Policy. For instance, in carsales.com.au Limited v. Alton L. Flanders, WIPO Case No. D2004-0047, the Panel concluded that RDNH applies when "the Complainant knew or should have known at the time of filing the Complaint that they could not establish one of the key elements required by the Policy."

That said, it is critical to distinguish between a Complainant's inability to substantiate their case and the demonstration of bad faith, which is the crux of paragraph 15(e).

 

A weak case submitted in good faith does not constitute RDNH. However, when bad faith is evident and the Complainant's intent is to unjustly deprive a domain name holder of their registered domain, this falls within the scope of paragraph 1 of the Policy.

 

In the present case, Complaint appears to have been filed with the intent of depriving Respondent of their legitimate domain name. The Panel notes that Complainant failed to present any valid arguments or evidence to support their claim.

 

This goes beyond a weak or poorly substantiated case, such as an inadequately proven claim to a common law trademark. Based on the criteria in the carsales.com.au Limited case, Complainant should have been aware at the time of filing that they could not meet the Policy's essential requirements.

 

Additionally, the Panel would like to remind that the UDRP procedure is not intended to address complex trademark infringement cases but only to focus on the UDRP Policy: identity or similarity of the domain name, lack of legitimate rights, and bad faith in registration and use. The present procedure is specifically designed to address cases of cybersquatting, and not to resolve more complex disputes for which national courts would have jurisdiction (see Sylvain Rafton v. Farhat Hedi, Napoleon & Cie, WIPO Case No. D2015-0207, and La Selafa MJA, represented by Me Lucile Jouve, Studio Pilote v. Alexander Mouselli, WIPO Case No. D2015-1870, WIPO Case No. D2023-4169, LC Bespoke v. Monsieur Manuel Chaufrein).

 

In other words, holding prior trademark rights alone is insufficient to demonstrate the respondent's lack of legitimate rights or bad faith, WIPO case No. D2024-1195, Pools123 Houston LLC v. John J Mehrman, Aquamarine Pools of Texas.

 

Accordingly, the Panel finds that Complaint was brought in bad faith and constitutes an attempt at RDNH.

 

DECISION

Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <healthyhomeexperts.net> domain name REMAIN WITH Respondent.

 

 

 

Nathalie Dreyfus, Panelist

Dated: December 17, 2024