Complainant is Hims, Inc., United States of America (“United States”), represented by Jones Day, United States.
Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf, Iceland / Riley Alkaline, hims and hers, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 16, 2021. On September 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2021, 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 September 20, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on September 28, 2021 and a second amendment to the Complaint on September 29, 2021.
The Center verified that the Complaint together with the amendments to 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 Respondent of the Complaint, and the proceedings commenced on October 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 26, 2021.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on November 11, 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 BackgroundComplainant is a company based in San Francisco, California, in the United States. Since 2017 Complainant has provided men’s and women’s wellness and personal care products and treatments under the mark HIMS, including via Complainant’s website located at its registered domain name
The disputed domain name was registered on August 27, 2021. Although it appears to resolve to a currently inactive webpage, Respondent has used one or more email addresses associated with the disputed domain name to engage in potentially fraudulent behavior whereby Respondent posed as an official human resources representative of Complainant, and sought to obtain sensitive personal and financial information from prospective job applicants of Complainant. Respondent has no affiliation with Complainant. Complainant has not authorized any activities by Respondent, nor any use of its trademarks thereby.
5. Parties’ Contentions A. ComplainantComplainant contends that (i) the disputed domain name is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.
In particular, Complainant contends that it has established rights in its registered HIMS mark. Complainant contends that Respondent has engaged in a “phishing” scheme. In particular, Complainant alleges that Respondent has registered the disputed domain name, which contains Complainant’s HIMS mark, with the addition of the dictionary term “for,” which Complainant also uses in its official website address. Complainant further contends that Respondent has used the disputed domain name to set up email accounts meant to confuse potential job applicants of Complainant into providing Respondent their sensitive personal and financial information. Complainant contends that Respondent has no rights or legitimate interest in the registration or use of the disputed domain name. Rather, Complainant contends that Respondent has acted in bad faith in sending out fraudulent emails, when Respondent was clearly aware of Complainant’s rights in the HIMS mark.
B. RespondentRespondent did not file a reply to Complainant’s contentions in this proceeding.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Panel must first determine whether the disputed domain name
Numerous UDRP panels have agreed that, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity for purposes of satisfying this first prong of paragraph 4(a)(i) of the Policy. See, for example, Inter-IKEA v. Polanski,
WIPO Case No. D2000-1614; General Electric Company v. Recruiters,
WIPO Case No. D2007-0584; Microsoft Corporation v. StepWeb,
WIPO Case No. D2000-1500; CBS Broadcasting, Inc. v. Y2K Concepts Corp.,
WIPO Case No. D2000-1065. See also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.
The Panel therefore finds that Complainant has satisfied the first UDRP element, in showing that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain name at issue in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering o-f goods or services”; (ii) demonstration that Respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
Respondent did not submit a reply to the Complaint, however. Rather, as mentioned in Section 4 of this Panel’s decision, Respondent has used an email account associated with the disputed domain name to engage in fraudulent behavior whereby Respondent has merely used the disputed domain name to set up one or more email accounts in an apparent phishing scheme. Accordingly, the Panel finds that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name, which Respondent has not rebutted. The Panel therefore finds that Complainant has satisfied the second UDRP element, in showing that Respondent lacks rights or legitimate interests in the disputed domain name in accordance with paragraph (4)(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThere are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on [the] web site or location”. As noted in Section 4 of this Panel’s decision, although the disputed domain name resolves to an inactive web page, Respondent has used the disputed domain name to set up one or more email accounts in a manner apparently calculated to confuse potential job applicants of Complainant into providing Respondent their sensitive personal and financial information.
Hence, Respondent is trading on the goodwill of Complainant’s trademarks to attract Internet users, presumably for Respondent’s own commercial gain. See WIPO Overview 3.0, section 3.4, which notes that “Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing, identity theft, or malware distribution”. Given the nature of the apparent impersonation of Complainant by Respondent, using a disputed domain name which incorporates Complainant’s registered HIMS mark, and which closely resembles the domain name associated with Complainant’s own official website, the Panel finds that Respondent has registered and used the disputed domain name with knowledge of Complainant’s prior rights, thereby evidencing bad faith for purposes of paragraph 4(a)(iii) of the Policy.
7. DecisionFor all 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
Lorelei Ritchie
Sole Panelist
Dated: November 23, 2021