WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Water for Living, LLC v. Brian Alderson
Case No. D2020-0984
1. The Parties
Complainant is Water for Living, LLC, United States of America (“United States”), represented by Hogan Duff, LLP, United States.
Respondent is Brian Alderson, United States.
2. The Domain Name and Registrar
The disputed domain name <cbdlivingusa.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2020. On April 22, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 22, 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 April 28, 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 April 28, 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 April 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 19, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 21, 2020.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on June 10, 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, Water for Living, LLC, is a United States-based company that markets and sells cannabidiol (“CBD”) products. Complainant uses the name and mark CBD LIVING in connection with a variety of health and wellness products that contain CBD, such as topical preparations, water, and pet products. Complainant owns a trademark application in the United States for a logo mark featuring CBD LIVING with a design, which was filed on January 22, 2019, and which claimed a first use date in commerce of November 15, 2015. That application is currently pending. Complainant also owns and uses the domain name <cbdliving.com> to promote the sale of Complainants CBD LIVING products.
Respondent appears to be an individual based in Pennsylvania. Respondent registered the disputed domain name on December 11, 2019. The disputed domain name has been used, and continues to be used, by Respondent for a website that promotes and offers for sale skin treatment products that contain CBD. The website at the disputed domain appears to be operated by a Kentucky-based company by the name of Matua Brilliance Inc.
5. Parties’ Contentions
Complainant asserts that it has used the CBD LIVING mark since November 2015 in connection with is CBD products and that through extensive use of the CBD LIVING mark, as well as through much national media attention that has focused on Complainant’s CBD LIVING products, Complainant has developed strong common law rights in the CBD LIVING mark.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s CBD LIVING mark as it fully incorporates the CBD LIVING mark with the non-distinguishing geographic term “USA.”
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name as Respondent (i) has used the disputed domain name to misleadingly redirect consumers to a website operated by Matua Brilliance Inc., and to intentionally deceive consumers as to the source or origin of the products therein; (ii) has registered and used at least one other domain name, <cbdnaturalandnew.com>, that is based on the brand of a competitor of Complainant, for a website operated by Matua Brilliance Inc. that likewise promotes the sale of skin treatment products containing CBD; and (iii) is not commonly known by the disputed domain name.
Lastly, Complainant contends that Respondent has registered and used the disputed domain name in bad faith as Respondent has used the disputed domain name, which is based on Complainant’s CBD LIVING mark, for profit by misdirecting consumers to a website that sells competing products. In that regard, Complainant maintains that Respondent’s use of the disputed domain name and of the CBD LIVING mark on the website associated with the disputed domain name has created actual consumer confusion.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006‑0340.
A. Identical or Confusingly Similar
Although Complainant does not own a trademark registration for the CBD LIVING mark, Complainant contends that it has developed common law or unregistered rights in the CBD LIVING mark. The evidence submitted by Complainant to establish such rights has included, by way of example, actual uses of the CBD LIVING mark by Complainant, a number of third-party articles concerning Complainant and its CBD LIVING products, an executed declaration from Complainant’s Chief Operating Officer, and representative examples of Complainant’s promotions and sponsorships for CBD LIVING products. In total, Complainant’s evidence, which has not been challenged by Respondent who has chosen not to appear in this proceeding, supports the contention that Complainant has developed some common law rights in the CBD LIVING mark for the purposes of the analysis under the first element of the Policy. WIPO Overview at section 1.3.
With Complainant’s rights in the CBD LIVING mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s CBD LIVING mark as the disputed domain name fully incorporates the CBD LIVING mark at the head of the disputed domain name with the mere addition of the geographic term “USA.” The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s CBD LIVING mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Based on the evidence submitted in this proceeding, and Respondent’s failure to file a response, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name. Since acquiring the disputed domain name, which was on a date after Complainant had secured rights in the CBD LIVING mark, Respondent has used the disputed domain name in order to redirect web users to a website operated by Matua Brilliance Inc. that promotes and offers for sale skin treatment products that contain CBD. Whether Respondent is connected to Matua Brilliance Inc. or is perhaps simply redirecting web users to that website for potential profit in some form is not clear. However, because the domain name consists of the CBD LIVING mark and the website features the CBD LIVING mark prominently and separate from the geographic term “USA,” there is a strong likelihood that Respondent knows that consumers will mistakenly believe that the disputed domain name and associated website are related to Complainant or are for products that Complainant is marketing and selling. That this may be the case is confirmed to some extent through the instances of actual consumer confusion that have been presented and claimed by Complainant. Simply put, Respondent’s use of the CBD LIVING mark to redirect web users to Respondent’s website or that of another party does not constitute a legitimate interest and is opportunistic.
Given that Complainant has established with sufficient evidence that it owns unregistered rights in the CBD LIVING mark for the purposes of the Policy, and given Respondent’s above-noted actions and failure to file a response, the Panel concludes that Respondent does not have rights or legitimate interests in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
C. Registered and Used in Bad Faith
In view of Respondent’s actions, and failure to appear in this proceeding, it is easy to infer that Respondent’s registration and use of the disputed domain name, which fully incorporates Complainant’s CBD LIVING mark, has been done opportunistically and in bad faith for purposes of redirecting web users to a website promoting and offering for sale skin treatment products that contain CBD. Given that Respondent (i) registered the disputed domain name after Complainant has established unregistered rights in the CBD LIVING mark in connection with its CBD products for the purposes of the Policy, and (ii) has also registered and used at least one other domain name based on another third party’s name and mark to redirect web users to a website operated by Matua Brilliance Inc. to promote the sale of skin treatment products, it appears more probable than not that Respondent’s actions were in bad faith and knowingly meant to take advantage of the goodwill associated with Complainant’s CBD LIVING mark for profit.
The Panel thus finds that Complainant succeeds under this element of the Policy.
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 <cbdlivingusa.com> be transferred to Complainant.
Date: June 24, 2020