The Complainant is Sunrise Senior Living, LLC, United States of America (“United States” or “U.S”), represented by Snell & Wilmer, LLP, United States.
The 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 the Complainant on July 8, 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 8, 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 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 Alistair Payne as the sole panelist in this matter on August 12, 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 one of the largest providers of senior living services in the United States. The Complainant is the registered owner of a number of word mark registrations incorporating the word SUNRISE and SUNRISE SENIOR LIVING. The Complainant registered U.S. word mark No. 2850729 on June 8, 2004 for SUNRISE SENIOR LIVING. The Complainant’s main company website is at “www.sunriseseniorliving.com”. This domain name was registered on March 21, 2000. The Disputed Domain Name was registered on February 7, 2020. The Disputed Domain Name redirects to a website “usd.gerfrid-nil.com” which is blocked because of a security threat. 5. Parties’ Contentions A. Complainant The Complainant asserts that it has registered trade mark rights in its word mark for SUNRISE SENIOR LIVING as described above. The Complainant submits that the Disputed Domain Name is identical or confusingly similar to its trade mark. It explains that the Disputed Domain Name incorporates its trade mark in its entirety. The Complainant explains that the addition of “www” does not reduce the confusing similarity between its mark and the Disputed Domain Name. It submits that previous panels have found that this practice takes advantage of mistakes that consumers are likely to make when intending to enter a complainant’s website address. The Complainant also notes that the addition of generic Top Level Domain (“gTLD”) suffix “.com” does not diminish the confusing similarity between the two marks. The Complainant says that this is a clear case of typosquatting which it addresses in its bad faith submission. The Complainant claims that the Respondent has no rights or legitimate interest in the Disputed Domain Name. It asserts that there is no evidence that the Respondent is commonly known by the SUNRISE SENIOR LIVING mark. The Complainant argues that the term “SUNRISE” in its trade mark is arbitrary and does not in fact denote the services it provides. As a result, it does not believe that the Respondent would have legitimately chosen this mark except to create an impression that it is associated with the Complainant. It notes that in similar cases panels have found that respondents have deliberately chosen a domain name to create a false impression that it is associated with a complainant. The Complainant confirms that it has not authorised the Respondent to use its trade mark, nor is the Respondent affiliated, connected or associated with the Complainant. The Complainant asserts that there is no evidence that the Respondent is using the Disputed Domain Name for a bona fide reason or for a noncommercial use. It notes that the website linked to the Disputed Domain Name automatically redirects to a website “usd.gerfrid-nil.com”. It explains that this website is blocked because it is a security threat and could contain malware or viruses that will infect a visiting computer. It refers to a screenshot that it has submitted which shows that the website is blocked. The Complainant submits that previous panels have previously found that respondents have no rights or legitimate interests in domain names where the website is used to spread viruses or malware. The Complainant says that its SUNRISE SENIOR LIVING trade mark registration was issued over 15 years before the Respondent registered the Disputed Domain Name and the fact that the Disputed Domain Name wholly incorporates the Complainant’s mark could not be a coincidence. In that regard, the Complainant cannot conceive plausible circumstances in which the Respondent could legitimately use the The Complainant says that the Respondent has merely added “www” to its mark. According to previous panels such registration and use of the Disputed Domain Name constitutes typosquatting and is obvious evidence of bad faith registration. The Complainant explains that the website linked to the Disputed Domain Name automatically redirects to a website that is blocked because there is a security threat and could contain viruses or malware that infect computers visiting the site. The Complainant asserts that linking to or hosting a website that promulgates viruses or malware constitutes bad faith use, which is in violation of paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. It refers to previous decisions of panels that have found using a domain name to automatically redirect customers is 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 that it owns United States word mark registration number 2850729 registered on June 8, 2004 for SUNRISE SENIOR LIVING. The Complainant’s SUNRISE SENIOR LIVING mark is wholly contained in the disputed domain name. In fact, the disputed domain name is identical to the Complainant’s trade mark apart from the addition of “www”. The addition of “www” does not detract from the confusing similarity of the disputed domain name from the Complainant’s SUNRISE SENIOR LIVING mark. Therefore, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trade mark for the purposes of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has confirmed that it is not associated with the Respondent nor has it licensed or authorised use of SUNRISE SENIOR LIVING to the Respondent. There is no evidence to suggest that the Respondent is commonly known by the Disputed Domain Name or that it is using the website to which the Disputed Domain Name resolves for a bona fide or legitimate noncommercial purpose. The Panel notes that the Disputed Domain Name redirects to a website at “usd.gerfrid-nil.com” which is blocked due to a security threat which possibly includes a threat of viruses and malware. Section 2.13.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition(“WIPO Overview 3.0”)provides that panels have categorically held that the use of a domain name for illegal activity such as distributing malware can never confer rights or legitimate interests on a respondent. The Panel finds that the Complainant has made out a prima facie case that the Respondent has failed to rebut. For this reason and for the reasons set out below under Part C, the Panel finds that the Complainant also succeeds under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant has demonstrated that it owns registered trade mark rights in the word mark SUNRISE SENIOR LIVING as described above. The Disputed Domain Name was registered on February 7, 2020 more than fifteen years after the Complainant’s word mark was registered under number 2850729 on June 8, 2004 in the United States. The Complainant is one of the largest providers of senior living services in the United States and operates hundreds of facilities, employs tens of thousands of people and appears to have very significant revenues and advertising budgets. As a result of this use over many years the Panel accepts that it has acquired goodwill and reputation in connection with its SUNRISE SENIOR LIVING trade mark in the United States. Considering the renown attaching to the mark and based on the Complainant’s reputation, it seems to the Panel more likely than not that that the Respondent was aware of the Complainant’s mark when it registered the Disputed Domain Name. The Complainant has provided evidence that the website linked to the Disputed Domain Name automatically redirects to a website at “usd.gerfrid-nil.com”. The print-out provided confirms that the website is blocked because it poses a high security threat and that it could be blocked because the site is hosting malware, the site is being used to attack computers or it may be part of a phishing campaign. It appears that the Respondent is using the Disputed Domain Name in bad faith to divert Internet users for its own gain or fraudulent purposes by creating confusion with the Complainant’s registered trade mark. Under paragraph 4(b)(iv) of the Policy attracting Internet users intentionally for commercial gain to a website or other on-line location, by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation, or endorsement of a website, or location or of a product or service on a website is evidence of registration and use in bad faith. Moreover, use of a domain name for illegal activity such as distributing malware is also evidence of registration and use in bad faith. Accordingly, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used in bad faith and that the Complainant succeeds under 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 Disputed Domain Name Alistair Payne
Sole Panelist
Date: August 21, 2020
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