WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Belmont Village Senior Living v. Belmont Senior
Case No. D2017-0153
1. The Parties
The Complainant is Belmont Village Senior Living of Houston, Texas, United States of America, represented by Freeborn & Peters, United States of America.
The Respondent is Belmont Senior of Ban Kaeng, Rangae Narathiwat, Thailand.
2. The Domain Name and Registrar
The disputed domain name <belmontvillageseniorliving.org> (the "Domain Name") is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 26, 2017. On January 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 30, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amended Complaint on January 27, 2017.
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 February 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 1, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 2, 2017.
The Center appointed Alan L. Limbury as the sole panelist in this matter on March 16, 2017. 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 provides senior assisted living facilities in the United States of America. It owns United States of America federally registered service marks BELMONT VILLAGE, No. 2,265,492, registered on July 27, 1999 and BELMONT VILLAGE SENIOR LIVING, the word "village" being stylised, No. 4,907,602, registered on March 1, 2016. The Complainant is also the registrant of the domain names <belmontvillage.com> and <belmontvillageassistedliving.com>. The home page of the Complainant's website at "www.belmontvillage.com" prominently displays the Complainant's BELMONT VILLAGE SENIOR LIVING mark.
The Domain Name was registered on September 29, 2016. It resolves to a website which prominently displays the Complainant's BELMONT VILLAGE SENIOR LIVING mark and which substantially copies the content of the Complainant's "www.belmontvillage.com" website. A BrightCloud report on the Respondent's website at "www.belmontvillageseniorliving.org" obtained by the Complainant found "Phishing" and "Windows Exploits" and characterised the website as "high risk".
5. Parties' Contentions
The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Respondent has no rights or legitimate interests in respect of the Domain Name because it has no relationship with the Complainant and is not operating a legitimate Belmont Village facility. The Complainant has not given the Respondent authorization to use its marks or any permutation of them.
The Domain Namewasregistered and is being used in bad faith. The Respondent's website at "www.belmontvillageseniorliving.org" substantially copies the Complainant's legitimate website at "www.belmontvillage.com". The BrightCloud report gives the Complainant reason to believe that the Respondent is using the Domain Name for purposes of phishing and Windows malware. This abuse is especially egregious in view of the fact that the Complainant's marketing is directed to senior citizens, a population that is especially vulnerable to online scams.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to obtain transfer of the Domain Name, the Complainant must prove the following three elements: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Respondent has registered the Domain Name and is using it in bad faith.
Under paragraph 15(a) of the Rules, "A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable".
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.
A. Identical or Confusingly Similar
In determining whether a domain name is identical or confusingly similar to a trademark or service mark, the specific top level of the domain name, in this case ".org", is generally regarded as irrelevant for this purpose: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Here the Domain Name identically matches the exact alphanumeric string contained in the Complainant's BELMONT VILLAGE SENIOR LIVING service mark. Further, the words "senior living" do not detract from the distinctiveness of the Complainant's BELMONT VILLAGE mark. Accordingly, the Complainant has shown that the Domain Name is confusingly similar to its BELMONT VILLAGE service mark and is identical to its BELMONT VILLAGE SENIOR LIVING service mark.
The Complainant has established this element.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate rights to or legitimate interests in the Domain Name for purposes of paragraph 4(a)(ii) of the Policy, i.e.:
(i) before any notice to the Respondent of the dispute, the use by the Respondent of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the Domain Name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The Panel finds that the BELMONT VILLAGE and BELMONT VILLAGE SENIOR LIVING service marks are distinctive and that the Complainant's assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.
Although the Domain Name is registered in the name Belmont Senior, the Respondent has made no attempt to show that it is commonly known by the Domain Name, nor that any of the other circumstances of Policy, paragraph 4(c) are applicable.
In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the Domain Name in bad faith for purposes of paragraph 4(a)(iii) of the Policy.
Having regard to the BrightCloud report and to the appearance and content of the Respondent's website, which is clearly designed to masquerade as the website of the Complainant, the Panel is satisfied that the circumstances set out in paragraph 4(b)(iv) of the Policy are satisfied in this case:
"(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent's website or location or of a product or service on its website or location."
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith.
The Complainant has established this element.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <belmontvillageseniorliving.org>, be transferred to the Complainant.
Alan L. Limbury
Date: March 23, 2017