Complainant is Sunrise Senior Living, LLC, United States of America (“United States”), represented by Snell & Wilmer, LLP, United States.
Respondent is Registration Private, Domains By Proxy, LLC, United States / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 19, 2020. On June 22, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 23, 2020, 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 June 23, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on June 23, 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 Respondent of the Complaint, and the proceedings commenced on June 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 14, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 15, 2020. The Center appointed Peter Wild as the sole panelist in this matter on July 21, 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 Complainant has been a provider of senior living services in the United States since at least 1981 and has used the marks SUNRISE and SUNRISE SENIOR LIVING in the United States for many years. Complainant owns numerous United States registrations for its SUNRISE Marks, including SUNRISE SENIOR LIVING, the earliest of which issued over 20 years ago (i.e. United States registration no. 2313763 for SUNRISE, registered February 1, 2000; and, United States registration no. 2850729 for SUNRISE SENIOR LIVING, registered on June 8, 2004). Since 2000, Complainant has used the domain name The Disputed Domain Name was created on June 24, 2019, and appears to refer to a website which is blocked by web browsers such as Google Chrome with a warning that it may contain and distribute viruses and/or malware. 5. Parties’ Contentions A. Complainant According to Complainant, the Disputed Domain Name is confusingly similar to Complainant’s trademarks SUNRISE and SUNRISE SENIOR LIVING as they are included in their entirety or with a minor typographical error only. Complainant claims to be one of the largest providers of senior living services in the United States with trademarks for SUNRISE and SUNRISE SENIOR LIVING going back more than 20 years. According to Complainant, Respondent registered and is using the Disputed Domain Name to confuse consumers and attract them to the website under the Disputed Domain Name, a website which under some web browsers is blocked as being dangerous with viruses or malware. The small, intended typographical error is, in Complainant’s view, a sign for the bad faith use of the Disputed Domain Name. The Disputed Domain Name is therefore, according to Complainant, registered and used in bad faith. Complainant furthermore claims that Respondent has no rights or legitimate interest in the terms “sunrise” or “sunrise senior living/livimg”, and that the Disputed Domain Name has been filed and is used in bad faith, using a very minor typographical error to create consumer confusion and leading consumers to Respondent’s website which may disseminate viruses and/or malware. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Disputed Domain Name contains, in its entirety and prominently, Complainant’s trademark SUNRISE. The added term “seniorlivimg” is purely descriptive (with a minor, most likely intended, spelling error) for Complainant’s industry. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Edition 3.0 (“WIPO Overview 3.0”), section 1.8 provides that “[w]here the relevant trademark is recognizable within the Disputed Domain Name, the addition of other terms […] would not prevent a finding of confusing similarity under the first element”. In line with this, the Panel decides that the Disputed Domain Name is confusingly similar to Complainant’s trademark SUNRISE. The Panel also finds that the Disputed Domain Name is confusingly similar to Complainant’s SUNRISE SENIOR LIVING trademark. See WIPO Overview 3.0, section 1.9. The first condition of the Policy is met. B. Rights or Legitimate Interests Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests, see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. If Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. There is no reason to believe that Respondent’s name somehow corresponds with the Disputed Domain Name, and Respondent does not appear to have any trademark rights associated with the terms “sunrise” or “sunrise senior living/livimg”. See VUR Village Trading No. 1 Limited t/a Village Hotels v. Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2019-1596. Respondent is not identified in the WhoIs database as “sunrise” or another name with the element “sunrise”. From the available record, there is no evidence that Respondent is commonly known by the Disputed Domain Name. The Panel therefore finds under paragraph 4(a)(ii) of the Policy that Respondent is not commonly known by the Disputed Domain Name. According to Complainant, Respondent is not affiliated with nor authorised by Complainant in any way to use the trademarks SUNRISE and SUNRISE SENIOR LIVING. The fact that the website under the Disputed Domain Name appears to be infected with and possibly infecting computers of visiting public with viruses and malware does not create any rights or legitimate interests. See, e.g., Skyscanner Limited v. Host Master 1337 Services, LLC,WIPO Case No. D2019-2664 (Quite the opposite is true; such behaviour is rather a strong indication of bad faith). Respondent did not claim any rights or legitimate interests, as it did not file a response at all. Based on these facts, the Panel holds that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and the second condition of the Policy is met. C. Registered and Used in Bad Faith Given the distinctiveness of Complainant’s trademarks and reputation at the time of the registration of the Disputed Domain Name, it is reasonable to infer that Respondent has registered the Disputed Domain Name with full knowledge of Complainant’s trademarks, constituting opportunistic bad faith, especially as Respondent added the term “senior livimg” which is almost identical to the term “senior living” which Complainant uses to describe its business and which forms part of some of its trademarks. It is not possible to conceive of a plausible circumstance in which Respondent could legitimately use In addition, it appears that the website under the Disputed Domain Name contains and possibly disseminates viruses and malware. The website is blocked as a security threat by some web browsers such as Google Chrome. Such content of a website under the Disputed Domain Name is a clear indication of bad faith use. Royal Bank of Canada v. China Capital Investment Limited,WIPO Case No. D2017-1025 (respondent had no rights or legitimate interests in domain where website used for viruses or malware), or Skyscanner Limited v. Host Master 1337 Services, LLC,WIPO Case No. D2019-2664. For these reasons, the Panel holds that the Disputed Domain Name was registered and used in bad faith and the third condition of the Policy is met. 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 Peter Wild
Sole Panelist
Date: July 23, 2020
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