The Complainant is 24-7 Bright Star Healthcare, LLC, United States of America (“U.S.”), represented by DLA Piper US LLP, U.S.
The Respondent is John Fummey, Ghana. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2020. On January 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 28, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on January 30, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 20, 2020. The Center appointed Gareth Dickson as the sole panelist in this matter on March 2, 2020. 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 provider of home health care and related services and offers home health care and related services through independently owned and operated locations. It does so under the BRIGHTSTAR CARE trade mark. The Complainant is the owner of a number of trade mark registrations for BRIGHTSTAR CARE around the world, and owns registrations (all predating the registration of the disputed domain name) in Canada, India, the United Arab Emirates and the U.S. The Complainant’s U.S. registrations for the mark BRIGHTSTAR CARE include: - U.S. trade mark registration number 4042547, registered on October 18, 2011; (the “Mark”). The disputed domain name was registered on September 17, 2019 (the Complainant having submitted the wrong WhoIs record with its Complaint but the correct position having been verified by the Center). It currently directs Internet users to a website, which looks identical to the Complainant’s own website at “www.brightstarcare.com”. 5. Parties’ Contentions A. Complainant The Complainant states that it relies on the Internet to promote and disseminate information regarding its various offerings under the Mark and that it owns and operates the website at “www.brightstarcare.com”. It contends that as a result of extensive use and promotion, the Mark became distinctive and well known before the Respondent registered the disputed domain name. The Complainant notes that the only difference between the disputed domain name and the Mark is the incorporation of an additional letter “r”. It alleges that this constitutes “typosquatting” and therefore is strong evidence of bad faith registration and use of the disputed domain name. The Complainant submits that the Respondent has made no bona fide offering of goods or services in connection with the disputed domain name, and that the Respondent’s use of the disputed domain name to direct Internet users to the Complainant’s own website does not evidence a bona fide offering of goods or services nor constitute a legitimate noncommercial or fair use of it that would be permitted under the Policy. Rather, it shows that the Respondent is attempting to mislead consumers into (wrongly) believing that the disputed domain name is associated or affiliated with the Complainant, when it is not. The Complainant states categorically that it has not licensed or otherwise permitted the Respondent to use the Mark or to apply for or use any domain name incorporating the Mark. It also argues that the Respondent is not commonly known by the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, the Complainant bears the burden of proving that: i. the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; ii. the 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. These criteria are cumulative. The failure of the Complainant to prove any one of these elements means the Complaint must be denied. A. Identical or Confusingly Similar The Panel accepts that the Complainant is the owner of, and therefore has rights in, the Mark. Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) provides that “[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. The Panel accepts that the disputed domain name is confusingly similar to the Mark since it is an obvious or intentional misspelling of the Mark, comprising the addition of an “r” after “brightstar” and before “care”, which is a minor difference to the Mark and does not alter the phonetic or conceptual similarity between the disputed domain name and the Mark. The disputed domain name is clearly intended to appear, and is, confusingly similar to the Mark. The addition of the generic Top-Level Domain (“gTLD”) “.com” does not alter this conclusion. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests Although a complainant is required to demonstrate that a respondent has no rights or legitimate interests in respect of the domain name, as explained in section 2.1 of the WIPO Overview 3.0, the consensus view of previous UDRP panels is that where a complainant establishes 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. In the current proceeding, the Complainant has established its prima facie case. The evidence before the Panel is that the Mark is distinctive of the Complainant, which makes a coincidental adoption by the Respondent unlikely. The Complainant states that it has not given the Respondent permission to use the Mark, in a domain name or otherwise, and submits that the Respondent has not been commonly known by the disputed domain name. There is no evidence that the Respondent has acquired any common law rights to use the Mark, is commonly known by the Mark or has chosen to use the Mark in the disputed domain name in any descriptive manner or is making any use of the disputed domain name that would establish rights or legitimate interests as a result of a noncommercial or fair use of it. Directing Internet users to a website, identical to the Complainant’s own website will only increase, rather than decrease, the likelihood that those users will wrongly conclude that the Complainant and the Respondent are connected. By not participating in these proceedings, the Respondent has failed to refute the Complainant’s prima facie case that it has met its burden under the second UDRP element. As clearly stated in section 2.1 of the WIPO Overview 3.0, “a panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed”. Having reviewed and weighed the available evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel notes that the disputed domain name was registered many years after the Mark was registered and accepts that it was chosen by reference to the Mark. It is a clear example of typosquatting. As a result, and in the absence of evidence from the Respondent that the similarity of the disputed domain name to the Mark is coincidental, the Panel must conclude that the Respondent knew of the Complainant’s rights in the Mark when it registered the disputed domain name. The Panel therefore finds that the Respondent’s registration of the disputed domain name was in bad faith since it attempted to appropriate for the Respondent, without the consent or authorisation of the Complainant, rights in the Complainant’s Mark. The disputed domain name is also being used in bad faith since it will, for the reasons set out above, lead Internet users to wrongly conclude that the Respondent, as registrant of the disputed domain name, is connected to the Complainant. The Respondent has not sought to explain its registration and use of the disputed domain name and has not participated in these proceedings. The Panel is entitled to draw an adverse inference from that failure. See section 2.1 and section 4.6 of the WIPO Overview 3.0. There is no evidence before the Panel to suggest that the Respondent’s use of the disputed domain name is not illegitimate and therefore there is no basis for the Panel to conclude that the Respondent’s use of the disputed domain name is justified. Therefore, and on the basis of the information available to it, the Panel must, and does, find that the Respondent’s use of the disputed domain name to associate itself with the Complainant is without justification and is inconsistent with the Complainant’s exclusive rights in the Mark. Consideration of these and other factors militates in favour of a finding of bad faith. The Panel finds that the Respondent has registered and is using the disputed domain name in bad faith. 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 Gareth Dickson
- U.S. trade mark registration number 3608700, registered on April 21, 2009;
- U.S. trade mark registration number 3608701, registered on April 21, 2009; and
- U.S. trade mark registration number 3101923, registered on June 6, 2006.
Sole Panelist
Date: March 23, 2020
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