1.1 Complainant is Sunrise Senior Living LLC of McLean, Virginia, United States of America, represented by McDermott Will & Emery LLP, United States of America.
1.2 Respondent is Domain Admin, Private Registrations Aktien Gesellschaft of Kingstown, Saint Vincent and the Grenadines / Domain Admin, Privacy Protection Service Inc., d/b/a PrivacyP of Queensland, Australia. 2. The Domain Name and Registrar
2.1 The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 1, 2015. On May 1, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 2, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 6, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an Amendment to the Complaint. The Complainant filed an Amended Complaint on May 6, 2015.
3.2 The Center verified that the Complaint together with the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
3.3 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceeding commenced on May 8, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 31, 2015.
3.4 The Center appointed David Perkins as the sole panelist in this matter on June 12, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background 4.A Complainant
4.A.1 Complainant is one of the largest providers of senior assisted and independent living services, memory care and skilled nursing services in the United States of America. It has been in that business since 1981 providing those and related services under the marks SUNRISE, SUNRISE SENIOR LIVING and formatives thereof. Complainant operates 245 facilities for seniors throughout the United States. It also operates such facilities in Canada and in the United Kingdom of Great Britain and the Northern Ireland.
4.A.2 Complainant is the proprietor of the following registered U.S. trade marks: Registration No Mark Classes of Goods/Services Application and Registration dates
2,669,922
SUNRISE
42
Filed November 9, 2000
Registered December 31, 20021
2,933,983
SUNRISE
35 and 43-45
Filed October 24, 2002
Registered March 15, 20052
2,850,729
SUNRISE SENIOR LIVING
35 and 43-45
Filed October 24, 2002
Registered June 8, 20043
3,010,096
SUNRISE SENIOR LIVING
35 and 43-45
Filed February 23, 2004
Registered November 1, 20054
4.A.3 Complainant registered the domain name on March 21, 2000 and the website to which that resolves has, Complainant says, been visited by millions of visitors throughout the United States and the world over the past 15 years. 4.B Respondent
4.B.1 In the absence of a Response, what is known about the Respondent is taken from the Complaint, the Amended Complaint and their annexes. The WhoIs shows that the disputed domain name was registered on January 8, 2006 by the first named Respondent of Nobby Beach, Queensland, Australia.
4.B.2 However, the Registrar has identified the registrant as the second named Respondent of Kingston, Saint Vincent and the Grenadines.
4.B.3 The disputed domain name resolves to a web page, which is blank but for the words “Inquire about this domain.” 5. Parties’ Contentions 5.A Complainant
5.A.1 Identical or Confusingly Similar
5.A.1.1 Complainant’s case is that the disputed domain name is identical to its registered SUNRISE SENIOR LIVING trade marks.
5.A.1.2 Further, Complainant says that the disputed domain name is confusingly similar to its SUNRISE trade marks. Citing two decisions under the Policy, Complainant asserts that addition of the descriptive words “senior” and “living” does not avoid confusing similarity.
5.A.1.3 All Complainant’s registered trade marks set out above predate the registration of the disputed domain name.
5.A.2 Rights or Legitimate Interests
5.A.2.1 Complainant’s case is that there is nothing to indicate that Respondent could bring itself within any of the grounds of paragraph 4(c) of the Policy. First, since the disputed domain name resolves to a blank web page (see, section 4.B.3 above), there has been no use in connection with a bona fide offering of goods or services: paragraph 4(c)(i) of the Policy. In that connection, Complainant cites two decisions under the Policy, namely Celmec International Pty. Ltd.v Bishni Subedi,WIPO Case No. D2006-0769 and Air Austral v WWW enterprise, Inc.,WIPO Case No. D2004-0765.
5.A.2.2 Second, Complainant has not licensed or otherwise authorised Respondent to use its SUNRISE and/or SUNRISE SENIOR LIVING trade marks.
5.A.2.3 Third, there is no evidence that Respondent is commonly known by the disputed domain name: see, paragraph 4(c)(ii) of the Policy. Indeed, Respondent’s identity is disguised under two privacy registrations (see, sections 4.B.1 and 2 above).
5.A.2.4 Fourth, in the absence of a Response and since the disputed domain name resolves to a blank web page, there is no evidence that Respondent is making a legitimate non commercial or fair use of that disputed domain name.
5.A.3 Registered and Used in Bad Faith
5.A.3.1 First, given that Complainant’s registered U.S. trade marks were all filed and registered prior to creation of the disputed domain name, Complainant asserts that Respondent had constructive notice of those registrations. Hence, Complainant says that the disputed domain name was registered in bad faith.
5.A.3.2 Second, citing decisions under the Policy, Complainant says that Respondent’s use of privacy services is an indication of bad faith.
5.A.3.3 Third - citing the decision in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 - Complainant asserts that, given the identity and confusing similarity of the disputed domain name respectively with its SUNRISE and SUNRISE SENIOR LIVING trade marks, Respondent’s efforts to conceal its true identity and the lack of evidence that Respondent has any intention to make bona fide use of the disputed domain name, there is no conceivable bona fide use Respondent could make of the disputed domain name that would not be an infringement of Complainant’s rights. 5.B Respondent
As noted in section 3 above, no Response has been filed. 6. Discussion and Findings
6.1 The Policy paragraph 4(a) provides that Complainant must prove each of the following in order to succeed in an administrative proceeding:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate Respondent’s rights or legitimate interests in the disputed domain name.
6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy. Identical or Confusingly Similar
6.5 Complainant has rights in the trade marks SUNRISE and SUNRISE SENIOR LIVING (see, section 4.A.2 above). Since the disputed domain name is identical to the SUNRISE SENIOR LIVING trade marks, the Complaint together with the Amended Complaint fulfil the requirements of paragraph 4(a)(i) of the Policy. Rights or Legitimate Interests
6.6 There is no evidence that Respondent could demonstrate any of the circumstances evidencing rights to or legitimate interests in the disputed domain name set out in paragraph 4(c)(i) to (iii) of the Policy. Additionally, Complainant’s case, summarised in sections 5.A.2.1-4 above, is well made out. Consequently, the Complaint together with the Amended Complaint also meet the requirement of paragraph 4(a)(ii) of the Policy. Registered and Used in Bad Faith
6.7 Complainant’s case summarised in sections 5.A.1-3 above is, in the Panel’s opinion, well made out. As to section 5.A.3 above, the Panel subscribes to the majority view recorded in paragraph 3.9 of the WIPO Overview of WIPO Panel Decisions on Selected UDRP Questions, Second Edition. Namely, that although use of a privacy or proxy registration is not in and of itself an indication of bad faith, the manner in which such service is used can in certain circumstances constitute a factor indicating bad faith. Here, the facts set out in sections 4.B.1 and 2 above, together with the absence of a Response, constitute - in the Panel’s view - sufficient to support a finding of bad faith.
6.8 As noted in section 4.B.3 the website resolves to a webpage which is blank. The passive holding of a domain name does not as such prevent a finding of bad faith.
6.9 Consequently, the Panel finds that the Complaint together with the Amended Complaint satisfies the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
David Perkins
Sole panellist
Date: June 17, 2015
1 First use in commerce January, 2001
2 First use in commerce August, 1981
3 First use in commerce May 30, 2003
4 First use in commerce May 30, 2003
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