DECISION

 

Tiger Aesthetics Medical, LLC v. pan xin yong

Claim Number: FA2502002140282

 

PARTIES

Complainant is Tiger Aesthetics Medical, LLC ("Complainant"), represented by David M. Perry of Blank Rome LLP, Pennsylvania, USA. Respondent is pan xin yong ("Respondent"), Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <tigeraesthetics.com>, registered with Sav.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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 14, 2025; Forum received payment on February 14, 2025.

 

On February 14, 2025, Sav.com, LLC confirmed by e-mail to Forum that the <tigeraesthetics.com> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 February 18, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 2025 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@tigeraesthetics.com. Also on February 18, 2025, 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 February 26, 2025. An amended version was received on the same date.

 

On February 26, 2025, pursuant to the Parties' requests to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it provides a wide range of goods and services, with a focus on cosmetic treatments and soft tissue augmentation and reconstruction, under the trademark TIGER AESTHETICS to customers through operations in the U.S. Complainant is a leader in the field of aesthetic medicine and is revolutionizing the field of aesthetic medicine by delivering cutting-edge, innovative products across reconstruction, cosmetic, and regenerative areas, empowering practitioners to achieve life-changing results for their patients. Complainant's comprehensive portfolio consists of silicone breast implants, tissue expanders, fillers, PRP, and thread lifts, as well as state-of-the-art allogeneic adipose products and autologous fat transfer technologies cell and tissue technologies. Complainant owns rights in its TIGER AESTHETICS trademark for use in connection with a wide range of goods and services for aesthetic medicine and other medical services. Complainant has developed widespread public recognition and appeal in its distinctive and reputational brand through extensive use starting at least as early as March 2024. Complainant has garnered significant common law rights in and to the TIGER AESTHETICS mark through continuous and substantial use of the mark in the marketplace. Complainant's TIGER AESTHETICS mark has become distinctive as used on or in connection with a variety of goods and services through Complainant's extensive marketing, advertising, and promotion of such goods and services under such mark. Complainant engages in significant marketing, promotional, and advertising activities related to its TIGER AESTHETICS mark, including on its website located at <www.tiger-aesthetics.com>. Complainant also confirms that it received 2,11 [sic] active users of its <www.tiger-aesthetics.com> in November and December 2024 alone, and has had 6,500 active users since November 2024. Complainant also markets its products and services under the TIGER AESTHETICS mark through marketing material distributed to the general public and consumers. Complainant also markets and advertises its products and services under the TIGER AESTHETICS mark through commonly used social media channels, including Instagram, Facebook and LinkedIn. Complainant is also advertised on its parent company Tiger Biosciences' website located at <tigerbiosciences.com/our-companies/tiger-aesthetics/>.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its TIGER AESTHETICS mark as it wholly incorporates the mark and merely adds the generic top-level domain ("gTLD") ".com".

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and 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, nor a legitimate noncommercial or fair use. Instead, the only use of the disputed domain name is to offer it for sale at a price in excess of out-of-pocket costs.

 

Further, says Complainant, Respondent registered uses the disputed domain name in bad faith. Respondent is offering the disputed domain name for sale to the general public at a price in excess of out-of-pocket costs. Respondent registered the disputed domain name with constructive and/or actual knowledge of Complainant's mark. Respondent used a privacy service.

 

B. Respondent

In its amended Response, Respondent states:

 

I searched 'tiger aesthetics' on https://tmsearch.uspto.gov/search/search-results, there is not live trademark. Also tiger is generic term and can be person last name, I see other active business site using 'tiger aesthetics', such as TealTigerAesthetics.com, TrixieTigerAesthetics.com. And there are other domains registered but not in use, such as TigerAesthetics.shop, BlindTigerAesthetics.com, TigerAestheticsRegen.com, TigerAestheticsMedical.com.

 

Also I searched 'tiger aesthetics' on https://opencorporates.com/companies?utf8=%E2%9C%93&utf8=%E2%9C%93&q=tiger+aesthetics&jurisdiction_code=&type=companies; there is not active exact business name 'tiger aesthetics'

 

No use on domain, just list for sale

 

Preliminary issue: independent research

According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), a Panel may conduct limited factual research regarding disputed domain names:

 

Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.

 

This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.

 

The panel has consulted historical resources and publicly available databases, see below.

 

FINDINGS

Complainant does not have a registered trademark for TIGER AESTHETICS.

 

Complainant's domain name <tiger-aesthetics.com> was registered on March 30, 2024. According to The Internet Archive: WayBack Machine, Complainant's website first went live in sometime between May and August 2024.

 

The earliest post to LinkedIn under "TIGER AESTHETICS" for Complainant's products appears to have been made in August 2024; it is titled "Sientra: A Tiger Aesthetics brand", and states: "We're excited to introduce ourselves!"

 

The disputed domain name was registered on October 30, 2024.

 

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.

 

Identical and/or Confusingly Similar

Complainant asserts common law rights in its TIGER AESTHETICS mark. Common law rights are sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Common law rights may be established through evidence of secondary meaning in the mark such as longstanding use, evidence of an identical domain name, media recognition, and promotional material and advertising. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including "longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising."). Here, Complainant registered the domain name <tiger-aesthetics.com> on March 30, 2024. However, Complainant does not provide a clear timeline for media recognition and public use of the mark. The Panel has not been able to find evidence of media recognition or public use of the mark prior to August 2024.

 

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"); see also Tristar Products, Inc. v. Domain Administrator / Telebrands, Corp., FA 1597388 (Forum Feb. 16, 2015) ("Complainant makes conclusory allegations of bad faith but has adduced no specific evidence that warrants a holding that Respondent proceeded in bad faith at the time it registered the disputed domain name. Mere assertions of bad faith, even when made on multiple grounds, do not prove bad faith."); see also Chris Pearson v. Domain Admin / Automattic, Inc., FA 1613723 (Forum July 3, 2015) (finding that the complainant could not establish the respondent registered and used the disputed domain name in bad faith because it failed to present evidence that would support such a holding).

 

The Panel finds that Complainant has not met its burden of providing sufficient evidence to establish the date on which it may have acquired common law rights in the TIGER AESTHETICS mark.

 

Since the earliest alleged use of the mark was in March 2024, it seems unlikely that the mark could be considered to have longstanding use in October 2024.

 

As explained below, the Complaint will be dismissed because Complainant has failed to satisfy its burden of proving bad faith registration.

 

Thus Panel need not further analyze the first element of the policy. See ECHO Health, Inc. v. Jack Casey / Echo Payments, FA 2027491 (Forum Feb. 22, 2023) ("As the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(iii), the Panel declines to analyze the other element of the Policy."); see also Damijan Tuscana/Medellin Living, LLC v. Brad Hinkelman, FA 1984731 (Forum Mar. 24, 2022) ("In order to succeed in its claim, Complainant must prove all three elements under the Policy.").

 

Rights or Legitimate Interests

For the reasons given above and below, the Panel will not analyze this element of the Policy.

 

Registration and Use in Bad Faith

According to 3.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"), in general, where a respondent registers a domain name before the complainant's trademark rights accrue, panels will not normally find bad faith on the part of the respondent.

 

However, 3.8.2 of the cited Overview states:

As an exception to the general proposition described above in 3.8.1, in certain limited circumstances where the facts of the case establish that the respondent's intent in registering the domain name was to unfairly capitalize on the complainant's nascent (typically as yet unregistered) trademark rights, panels have been prepared to find that the respondent has acted in bad faith.

 

Such scenarios include registration of a domain name: (i) shortly before or after announcement of a corporate merger, (ii) further to the respondent's insider knowledge (e.g., a former employee), (iii) further to significant media attention (e.g., in connection with a product launch or prominent event), or (iv) following the complainant's filing of a trademark application.

 

Complainant asserts common law rights in its mark, but, as already noted, fails to provide sufficient evidence to establish the date on which it may have acquired common law rights in the TIGER AESTHETICS mark.

 

The Panel finds, on the balance of the evidence before it, that Complainant has failed to satisfy its burden of proving that it acquired common law rights in the mark TIGER AESTHETICS before the disputed domain name was registered on October 30, 2024.

 

The Panel also finds that Complainant has failed to satisfy its burden of proving that Respondent's intent in registering the disputed domain name was to unfairly capitalize on Complainant's nascent trademark rights.

 

Thus the Panel finds that Complainant has failed to satisfy its burden of proving bad faith registration of the disputed domain name, and it will dismiss the Complaint.

 

This dismissal is of course without prejudice to any national court proceedings that the parties may wish to envisage.

 

The Panel notes that, as stated in 4.18 of the cited Overview, the instant case could be refiled if Complainant can present new material evidence that was reasonably unavailable to it when the instant case was filed, in particular concerning Respondent's intent in registering the disputed domain name.

 

Indeed, the instant Panel explicitly gives Complainant leave to refile on such grounds; see RapidShare AG and Christian Schmid v. Fantastic Investment Limited, FA 1338403 (Forum Oct. 8, 2010) ("Complainant argued that the prior panel had given leave to Complainant to submit a fresh complaint. The Panel may find the prior panel's approval supports a rehearing of the dispute involving the domain name.").

 

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 <tigeraesthetics.com> domain name REMAIN WITH Respondent.

 

However, Complainant is given leave to refile the Complaint if it can provide evidence of Respondent's intent in registering the disputed domain name.

 

 

 

Richard Hill, Panelist

Dated: February 26, 2025