Complainant is Haemonetics Corporation of Braintree, Massachusetts, United States of America (“United States”), represented by Sunstein Kann Murphy & Timbers LLP, United States.
Respondent is Johnathan Graves, Haamonetics of Washburn, Tennessee, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2017. On November 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 21, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 22, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 13, 2017.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on December 26, 2017. 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
Complainant states that it is “recognized worldwide as a leading provider of blood management solutions”; that it “is publicly traded on the New York Stock Exchange”; and that it “has used the HAEMONETICS mark in connection with blood-processing equipment and blood-management services since 1971, and intends to continue such use indefinitely.”
Complainant states, and provides evidence to support, that it is “the owner of trademark registrations in 30 jurisdictions for the mark HAEMONETICS, including U.S. Registration No. 1,057,423 for HAEMONETICS (registered February 1, 1977) for use in connection with, inter alia, “blood processing apparatus for laboratory use” and “blood processing apparatus for clinical use.” These registrations are referred to collectively herein as the “HAEMONETICS Trademark”.
The Disputed Domain Name was registered on November 10, 2017, and, as described by Complainant and confirmed by a screenshot included with the Complaint, “is currently parked and displays a website run by Zoho enticing visitors to build their own website with Zoho Sites.” 5. Parties’ Contentions A. Complainant
Complainant contends, in relevant part, as follows:
- The Disputed Domain Name is confusingly similar to the HAEMONETICS Trademark because “Respondent’s domain name is virtually identical to Complainant’s HAEMONETICS trademark – differing only in the addition of a second letter ‘a’ instead of the first ‘e’”, which is, by definition, typosquatting.
- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because “Complainant’s HAEMONETICS trademark is highly distinctive in connection with blood-management products and services and is not a word a third party would legitimately choose unless seeking to create an impression of an association with the Complainant”; “[u]se of HAEMONETICS is arbitrary, and unique to Haemonetics Corporation, which adopted the mark in 1971”; “Haemonetics has never licensed or otherwise permitted Respondent to use the HAEMONETICS mark”; “Respondent’s use of the HAEMONETICS mark, with a small cynical alteration, is a deliberate attempt to take commercial advantage of Haemonetics’ rights in HAEMONETICS”; and “Respondent, Johnathan Graves, is not affiliated in any way with Haemonetics Corporation and does not have permission from Haemonetics to use the registered HAEMONETICS trademark or any other confusingly similar trademark.”
- The Disputed Domain Name was registered and is being used in bad faith because, inter alia, “[t]he HAEMONETICS mark is well known and the Respondent must have known of it”; “[t]yposquatting itself is evidence of bad faith”; and “Respondent’s use of the domain is an intentional attempt to attract Internet users for commercial gain to the Respondent’s prospective web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of such web site.” B. Respondent
Respondent did not reply to Complainant’s contentions. However, in an email sent to the Center on November 29, 2017, a person identifying herself only as “Mrs. Graves” stated:
“My son received a letter today through DHL from your office stating a complaint Case No. D2017 2295 has been filed against him over a domain name, my son doesn't even know what a domain name is and definitely doesn't know how to obtain one. He doesn't even own a computer. The only explanation I can figure is that someone has stole his name and address somehow. I do not recognize the phone number or email that is listed with his information so maybe you can trace it to find the real person who did this. I would ask that you please remove my sons [sic] name and address. I would also ask that your office would contact the Complainant to let them know also.” 6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. Policy, paragraph 4(a). A. Identical or Confusingly Similar
Based upon the trademark registrations cited by Complainant, it is apparent that Complainant has rights in and to the HAEMONETICS Trademark.
As to whether the Disputed Domain Name is identical or confusingly similar to the HAEMONETICS Trademark, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “haamonetics”) because “[t]he applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1.
Here, the Disputed Domain Name contains the HAEMONETICS Trademark in its entirety other than the difference of a letter “a” in place of a letter “e”. As stated in WIPO Overview 3.0, section 1.7, “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” As this Panel has previously said, a single letter difference is irrelevant for purposes of confusing similarity. Bay Bread LLC d/b/a La Boulange v. Tigran Mirzoyan,WIPO Case No. D2015-1040. See also, e.g., Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc. v. Erik Little,WIPO Case No. D2005-0460 (substitution of a single letter “is insignificant for purposes of confusing similarity” and “is widely known as ‘typosquatting’”).
Accordingly, the Panel finds that Complainant has proven the first element of the Policy. B. Rights or Legitimate Interests
Complainant has argued that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because “Complainant’s HAEMONETICS trademark is highly distinctive in connection with blood-management products and services and is not a word a third party would legitimately choose unless seeking to create an impression of an association with the Complainant”; “[u]se of HAEMONETICS is arbitrary, and unique to Haemonetics Corporation, which adopted the mark in 1971”; “Haemonetics has never licensed or otherwise permitted Respondent to use the HAEMONETICS mark”; “Respondent’s use of the HAEMONETICS mark, with a small cynical alteration, is a deliberate attempt to take commercial advantage of Haemonetics’ rights in HAEMONETICS”; and “Respondent, Johnathan Graves, is not affiliated in any way with Haemonetics Corporation and does not have permission from Haemonetics to use the registered HAEMONETICS trademark or any other confusingly similar trademark.”
WIPO Overview 3.0, section 2.1, states: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Panel finds that Complainant has established its prima facie case and without any evidence from Respondent to the contrary, the Panel is satisfied that Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).
As set forth in section 3.1.4 of WIPO Overview 3.0: “Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” Here, the Disputed Domain Name obviously comprises a typo of the HAEMONETICS Trademark; and the trademark is distinctive, has been registered since at least 1971, and is protected by registrations in 30 jurisdictions, which indicates that it is well-known trademark; and Complainant has stated, and Respondent has not disputed, that Respondent is unaffiliated with it. These factors – combined with the absence of any indication, from Respondent or otherwise, of good faith – convinces the Panel that the Disputed Domain Name was registered and is being used in bad faith.
Accordingly, the Panel finds that Complainant has proven the third element of the Policy. 7. Decision
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.
Douglas M. Isenberg
Sole Panelist
Date: January 8, 2018
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