The Complainant is Fitbit, Inc., United States of America (“United States”), represented by Fenwick & West LLP, United States.
The Respondent is Domain Administrator, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2019. On October 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 14, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 14, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 15, 2019. 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”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 4, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2019. The Center appointed Mathias Lilleengen as the sole panelist in this matter on November 8, 2019. 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 The Complainant is a technology company founded in 2007. It is today one of the world’s leaders in the wearable device market and the health and fitness technology fields. The Complainant develops and provides electronic multifunctional tracking devices, smartwatches, scales, related fitness and health mobile software, an online platform, and various health services. Its products can be purchased online and in stores around the world. The Complainant owns numerous trademark registrations for FITBIT, including United States Reg. No. 3732334 registered on December 29, 2009. The Complainant has since at least as early as September 2009 used the mark FITBIT in interstate commerce in the United States in connection with its goods and services. The Complainant’s primary website is “www.fitbit.com”. Pursuant to the Complaint and the WhoIs records, the Domain Name was created on April 7, 2011. Pursuant to the Registrar, the Domain Name will expire on April 7, 2020. The Domain Name resolves to several types of websites including forms of adware and browser redirection programs or a page that is blank but does offer the Domain Name for sale. 5. Parties’ Contentions A. Complainant The Complainant argues its trademark is widely recognized by consumers, and the Domain Name incorporates it trademark in its entirety together with the prefix “www”. The Domain Name is therefore confusingly similar or identical to the Complainant’s trademark. The Complainants asserts that the Respondent is not sponsored or related in any way with the Complainant. The Respondent has never been allowed to use the Domain Name. The Respondent has used the Domain Name for adware and browser redirection programs, a web page that offers the Domain Name for sale, or other use that is not legitimate or fair use. The Complainant argues that the mentioned use is evidence of bad faith registration and use. The Domain Name was registered to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. The Respondent must have known of the Complainant and its trademark rights. A coincidental registration of the Domain Name by the Respondent is unlikely. It is a clear case of typosquatting, given the minor differences between the Domain Name and the FITBIT mark. The practice of typosquatting is in itself evidence of the bad faith registration. Finally, the Respondent’s registration through a proxy service is, in this context, further evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established trademark rights. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name incorporates the Complainant’s trademark in its entirety, together with the prefix “www”. For the purpose of assessing confusing similarity, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) “.com”, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11. The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing the Complainant’s trademark or otherwise make use of the trademark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired unregistered rights. The way the Respondent has used the Domain Names is not bona fide. On the contrary, it is evidence of bad faith. The Panel finds the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Taking into account the Respondent’s use of the Domain Name, the Panel concludes that the Respondent has attempted to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. It is likely that the Respondent knew of the Complainant and its business when the Respondent registered the Domain Name. The above, together with the fact that the Respondent has hidden behind a proxy service, and not replied to the Complainant’s contentions, persuades the Panel to conclude that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) 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 Domain Name Mathias Lilleengen
Sole Panelist
Date: November 18, 2019
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