The Complainant is Sunrise Senior Living, LLC, United States of America (“United States”), represented by Snell & Wilmer, LLP, United States.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States / Zhichao Yang, China. 2. The Domain Name and Registrar
The first disputed domain name, The Complaint relating to the first disputed domain name was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 10, 2020. On June 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the first disputed domain name. On June 11, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the first disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 15, 2020 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 June 17, 2020. 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 June 23, 2020.In accordance with the Rules, paragraph 5, the due date for Response was July 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2020 The Center appointed Antony Gold as the sole panelist in relation to the first disputed domain name on August 4, 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. Procedural History – Second disputed domain name The Complaint relating to the second disputed domain name was filed with the Centeron June 19, 2020. On June 22, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the second disputed domain name. On June 22, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the second disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 1, 2020, 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 July 1, 2020. On July 6 2020, the Complainant requested that the Complaints relating to the first and second disputed domain names be consolidated (which, for reasons set out below, the Panel has granted). The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Policy, the Rules, and 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 July 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2020. The Center appointed Antony Gold as the sole panelist in the proceedings related to the second disputed domain name on August 10, 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. 5. Factual Background The Complainant is a substantial provider of senior living services in the United States and operates hundreds of facilities which deliver these services. Since at least 1981, it has used the marks SUNRISE SENIOR LIVING and SUNRISE in connection with its business, including its assisted living, skilled nursing and retirement home services. Since 2000, the Complainant has operated a website at “www.seniorliving.com” which it uses to advertise the services it provides. The Complainant owns many service mark registrations to protect its trading styles. These include United States service mark, Registration No. 2,850,729, for SUNRISE SENIOR LIVING, registered on June 8, 2004 in international classes 35, 43, 44 and 45 and United States service mark, Registration No., 2,313,763, registered on February 1,, 2000, for SUNRISE in international class 42. The first and second disputed domain names were registered on February 11, 2018. Each of them resolves to a webpage which features the name of the respective disputed domain name at the top, followed by the words “Related Links”, beneath which are presented pay-per-click (“PPC”) links associated with the Complainant and/or the services it provides. The links on each webpage are not identical, but are very similar and comprise links such as “Sunrise Senior Living”, “Senior Living Housing”, “Assisted Living Retirement Homes” and “Independent Living for Seniors”. 6. Parties’ Contentions A. Complainant The Complainant says that both disputed domain names are identical or confusingly similar to a service mark in which it has rights. The first disputed domain name incorporates the entirety of the Complainant’s SUNRISE mark and is confusingly similar to the Complainant’s SUNRISE SENIOR LIVING mark, the only difference being that the word “senior” has been pluralized by the addition of an “s” at the end of it. The second disputed domain name also incorporates the entirety of the Complainant’s SUNRISE mark and is confusingly similar to the Complainant’s SUNRISE SENIOR LIVING mark, simply lacking the last letter “g” from the word “living”. Minor misspellings of this type comprise typosquatting. The Complainant asserts also that the Respondent has no rights or legitimate interests in respect of the disputed domain names. There is no evidence that the Respondent is commonly known by the names “Sunrise” or “Sunrise Senior Living”. The Complainant’s marks are arbitrary for senior living services and related services because “Sunrise” does not describe an attribute or characteristic of those services. Accordingly, the disputed domain names are not domain names which the Respondent would choose unless seeking to create a false impression of association with the Complainant; see Sbarro Franchise Co., LLC v. Domain Admin Domain Admin, whoisprotection biz / Burc Caglayan,WIPO Case No. D2016-1837. There is no evidence that the Respondent is preparing to use either of the disputed domain names in connection with a bona fide offering of goods or services or is making a legitimate noncommercial or fair use of them. The Complainant has not authorized the Respondent to register or use the Complainant’s service marks. The Complainant and the Respondent are not affiliated, connected or associated with one another. The disputed domain names each link to websites containing pay-per-click (“PPC”) links for services of the same or similar type offered by the Complainant under its trade marks, for example, retirement communities, senior living apartments and assisted care homes. Using the disputed domain names to host sponsored links associated with the Complainant’s business does not comprise a bona fide offering of goods and services; see Merck Sharp & Dohme Corp. v. Domain Administrator, PrivacyGuardian.org / George Ring, DN Capital Inc.,WIPO Case No. D2017-0302. Moreover, the Respondent is using the disputed domain names in bad faith, meaning that it lacks rights or legitimate interests in them. Lastly, the Complainant says that the disputed domain names were registered and are being used in bad faith. The earliest of the Complainant’s SUNRISE trade marks was registered many years before the disputed domain names were registered by the Respondent. It is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use the disputed domain names. Both the disputed domain names are confusingly similar to the Complainant’s SUNRISE and SUNRISE SENIOR LIVING service marks, for the reasons stated earlier, and such typosquatting comprises obvious evidence of the bad faith registration of the disputed domain names. The websites to which the disputed domain names resolve contain PPC links to competitors of the Complainant and others offering similar services to the Complainant, for example, links to retirement communities, senior living apartments, and senior living homes. Even if the Respondent did not post the links itself, it cannot disclaim responsibility for content associated with the disputed domain names. The Respondent is using the disputed domain names for commercial gain and diverting traffic from the Complainant’s own website by creating a likelihood of confusion with the Complainant’s service marks in violation of paragraph 4(b)(iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 7. Procedural issues - Consolidation The reason why the Complainant instituted separate Complaints in relation to the first and second disputed domain names and has subsequently applied to consolidate them is explained by the procedural histories of the Complaints, as set out above. The proceedings in relation to the first disputed domain name commenced on June 23, 2020. However, the identity of the underlying registrant of each disputed domain name was protected by a privacy service. As a consequence, the fact that the underlying Respondent to each Complaint was the same in each proceeding was not known to the Complainant until the Center provided the registrant and contact information disclosed by the Registrar to the Complainant in relation to the second disputed domain name on July 1, 2020. By this point, the proceedings in relation to the first disputed domain name had already commenced. Whilst the Complainant could have withdrawn its Complaint in relation to the second disputed domain name and applied to have added it to the Complaint relating to the first disputed domain name, UDRP panels do not generally grant such applications after (as here) the proceedings have already commenced and the proceedings have been notified to the respondent; see section 4.12.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The more appropriate course in these circumstances, as followed by the Complainant, is to apply for consolidation of the two Complaints. Paragraph 3(c) of the Rules, expressly provides that a complaint may relate to more than one domain name, where such domain names are registered to the same domain-name holder. Paragraph 10(e) of the Rules provides that a panel shall decide a request by a party to consolidate multiple domain name disputes. Paragraph 4(f) of the Policy provides that in the event of multiple disputes between the parties, either party may petition to consolidate the disputes before a single panel. The first and second disputed domain names were registered by the same underlying registrant on the same day using the same Registrar and they each resolve to websites the form of which is substantially the same. Moreover, as the Complainant has pointed out, it could not have known at the time each Complaint was filed that the underlying registrant was the same. It plainly makes sense for the Complaints to be dealt with on a consolidated basis and the Panel accordingly grants the Complainant’s request for consolidation. 8. Discussion and Findings Dealing, first, with the Respondent’s failure to file a response to either Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission as it considers appropriate. Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order to succeed in its Complaint: (i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (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. A. Identical or Confusingly Similar The information provided by the Complainant in relation to its service mark registrations has established its rights in its service marks SUNRISE and SUNRISE SENIOR LIVING. For the purpose of determining whether the first and second disputed domain names are identical or confusingly similar to these marks, the generic Top-Level-Domain (“gTLD”) “.com” is disregarded as this is a technical requirement of registration. The first disputed domain name comprises the Complainant’s SUNRISE SENIOR LIVING trade mark in full save that an “s” has been added after the word “senior”. The second disputed domain name differs from the Complainant’s SUNRISE SENIOR LIVING service mark simply by the omission of the last letter, “g” of the final word, “living”. These minor differences do not impact on an assessment of whether the disputed domain names are confusingly similar to the Complainant’s service marks. As explained at section 1.7 of the WIPO Overview 3.0; “While each case is judged on its own merits, 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”. Both disputed domain names feature the Complainant’s SUNRISE mark in its entirety and its SUNRISE SENIOR LIVING service mark is clearly recognizable within each of them. The Panel accordingly finds that the disputed domain names are both identical and confusingly similar to service marks in which the Complainant has rights. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides, without limitation, examples of circumstances whereby a respondent might demonstrate that it has rights or legitimate interests in a domain name. In summary, these are if a respondent has used or prepared to use the domain name in connection with a bona fide offering of goods or services, if a respondent has been commonly known by the domain name, or if a respondent has made a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark in issue. So far as the first of these circumstances are concerned, the evidence submitted by the Complainant indicates that the use to which the Respondent has put the disputed domain names is not bona fide, in that the Respondent is seeking to misleadingly divert Internet users seeking the Complainant’s services by featuring links to websites offering associated or competing services from which it will be deriving PPC revenue or commission. As explained at section 2.9 of the WIPO Overview 3.0, panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links, as is the case here, compete with or capitalise upon the reputation and goodwill of a complainant’s trademark. The second and third circumstances are also inapplicable; there is no evidence that the Respondent has been commonly known by either of the disputed domain names. Moreover, the use which it is making of the disputed domain names is plainly commercial in character. In addition, as explained at section 2.5 of the WIPO Overview 3.0; “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner”. The Complainant has established a prima facie case that the second element of the Policy is satisfied and the burden of production accordingly shifts to the Respondent. The Respondent having failed to respond to either Complaint, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names. C. Registered and Used in Bad Faith Both disputed domain names incorporate the Complainant’s SUNRISE service mark in full and comprise only very minor variations of the Complainant’s SUNRISE SENIOR LIVING service mark. As explained at section 3.1.4 of the 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”. The Complainant’s evidence in as to the extent of its repute in the United States is limited to mere assertion. However, the “Sunrise” component of its service marks is distinctive in relation to the services provided by the Complainant and the likelihood of the Respondent having registered the disputed domain names without an awareness of the Complainant and its services is remote. This is particularly the case when the only known use to which the disputed domain names have been put is to point to pages hosting PPC links associated with the Complainant’s services, which suggests that the Respondent did not have any other use in mind for them as at the date of registration. Accordingly, the Panel finds that the disputed domain names were registered in bad faith. Whilst the use of a domain name to point to parking pages hosting PPC sponsored links is not inherently objectionable, previous decisions under the Policy have found that such conduct can constitute bad faith use if the combination of the characteristics of a domain name and the nature of the links on the website to which it resolves are intended to mislead Internet users. See, for example, Yahoo! Inc. v. Hildegard Gruener,WIPO Case No. D2016-2491, in which the panel explained that “the use, to which the disputed domain names are put, namely parking pages featuring sponsored advertising links, is calculated to attract Internet users to the site in the mistaken belief that they are visiting a site of or associated with the Complainant. The object has to be commercial gain, namely pay-per-click or referral revenue achieved through the visitors to the site clicking on the sponsored advertising links. Even if visitors arriving at the websites to which the disputed domain name resolve become aware that these websites are not such of the Complainant, the operators of these websites will nonetheless have achieved commercial gain in the form of a business opportunity, namely the possibility that a proportion of those visitors will click on the sponsored links”. The facts point to the Respondent having registered the disputed domain names in circumstances similar to those outlined in Yahoo! Inc. v. Hildegard Gruener (supra). The PPC links on the Respondent’s website pages ostensibly relate to services similar to those provided by the Complainant and, having regard to the similarity between the disputed domain names and the Complainant’s SUNRISE and SUNRISE SENIOR LIVING service marks, the Respondent is deriving income from the confusion being caused to Internet users. Such conduct falls within the example of bad faith registration and use set out at paragraph 4(b)(iv) of the Policy namely that, by using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of those websites. For these reasons, the Panel therefore finds that the disputed domain names were both registered and used in bad faith. 9. 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 names Antony Gold
Sole Panelist
Date: August 19, 2020
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