The Complainant is Enlivant Master Mgt Co LLC, United States of America (“United States”), represented by Maynard, Cooper & Gale, P.C., United States.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / BN LN, BN LN TECH, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 1, 2020. On December 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 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 December 9, 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 December 10, 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 December 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 11, 2021. The Center appointed Carol Anne Been as the sole panelist in this matter on January 22, 2021. 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 services and senior living facilities in the United States. Its mark, ENLIVANT, was adopted by the Complainant’s predecessor in 2014, and has been used since then for home health and senior living services, including in the domain name for the Complainant’s website at “www.enlivant.com”. The Complainant’s mark ENLIVANT No. 4724782 was registered in the United States Patent and Trademark Office on April 21, 2015, and is recognized by consumers in the United States. The Complainant also uses its mark for its company email addresses, in the form “name@enlivant.com”. The disputed domain name was registered on October 2, 2020. No website is hosted at the disputed domain name. The Respondent has used the disputed domain name in an email address, in the form “name@eniivant.com”, with the spelling/capitalization “enIivant.com”, where the first “i” is capitalized and the second “i” is lower case, in an apparent phishing attempt. 5. Parties’ Contentions A. Complainant The Complainant alleges the disputed domain name is identical or confusingly similar to its prior rights in the ENLIVANT mark, with the only difference being replacement of the letter “l” in the Complainant’s mark with the letter “i” in the disputed domain name. The Complainant alleges the Respondent has no authorization to use its mark, and has no legitimate business or bona fide offering of goods under the disputed domain name. Rather, the Complainant alleges the Respondent uses the disputed domain name in illegal phishing efforts, and provided an email using the disputed domain name in the email address as evidence of phishing. The Complainant alleges the Respondent registered and uses the disputed domain name in bad faith, by intentionally attempting to obtain information through deceit through phishing emails, and by attempting to pass itself off as the Complainant to cause the Complainant to mistakenly send money or confidential information to the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings While the Complainant bears the burden of proof on the allegations in the Complaint, the Respondent’s failure to respond and provide evidence or arguments against the Complainant’s prima facie case may lead the Panel to draw inferences against the Respondent, particularly where no other plausible conclusion is apparent. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.3. A. Identical or Confusingly Similar The Complainant owns trademark rights in the mark ENLIVANT in the United States since 2015, which is prior to the registration of the disputed domain name in 2020. The disputed domain name appears as “eniivant.com” when all letters are written in lower case. However, when the first “i” in the disputed domain name is capitalized, that letter may appear to be the letter “l” in lower case. The Complainant alleges the domain name “enIivant.com” (with a capital “i”) may have the same or similar appearance to the Complainant’s mark ENLIVANT and its domain name Unlike a typical case of key-adjacent or spelling-mistake-based typosquatting, where use of a disputed domain name may anticipate and try to capture web traffic with such typographical errors by users, the disputed domain name instead is intended to trick the eye into seeing the disputed domain name as the Complainant’s mark or domain name by interchanging a capital “i” for a lower case “l”. The Panel finds the disputed domain name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant did not authorize the Respondent’s use of the disputed domain name. On or about October 5, 2020, the Complainant received an email purportedly from an employee of the Complainant displaying the sender’s email address as “[...]@enIivant.com”. This email address covertly included the disputed domain name rather than the Complainant’s mark and domain name. The email address used a capital “i” in place of the letter “l” in the Complainant’s mark, which capital “i” appears to be a lower case “l”. The email indicated the employee’s purported approval of a forwarded email and attached document instructing payments to a third party to be directed to particular account, in place of the usual payment instructions. The Complainant alleges that the email was not sent by its employee, did not reflect a legitimate change in payment instructions, and was a phishing email intended to cause the Complainant to mistakenly send money or confidential information to the Respondent rather than the intended recipient. Panels have held that the use of a disputed domain name for phishing, impersonation/passing off, or other types of fraud does not confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. Accordingly, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. The Panel finds the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Respondent registered the disputed domain name several years after the Complainant first used and registered its ENLIVANT mark. The email described above indicates that the Respondent was aware of the Complainant’s prior rights in its mark. Panels have held that the use of a disputed domain name for phishing or deceptive emails, such as emails soliciting payment of fraudulent invoices, may constitute bad faith even when the disputed domain name is not used to host a website. WIPO Overview 3.0, Section 3.4. Here, the disputed domain name was used in an attempt to trick the Complainant to direct payment to an account that likely was for the benefit of the Respondent, by using the disputed domain name to create a nearly identical clone of a legitimate employee email address. The Respondent had the opportunity to respond to the Complaint, but failed to do so. The Respondent’s failure to rebut the case asserted by the Complainant indicates the lack of any other plausible explanation. The Panel finds the Respondent 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, Carol Anne Been
Sole Panelist
Date: February 4, 2021
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