Complainant is Sunrise Senior Living, LLC, United States of America (“United States”), represented by Snell & Wilmer, LLP, United States.
Respondent is Domain Admin, Domain Privacy Guard Sociedad Anonima Ltd, Panama.
The disputed domain name is <sunriseniorliving.com> (the “Disputed Domain Name”) and is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2020. On June 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 13, 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 June 15, 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 June 17, 2020.
The Center verified that 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 June 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 9, 2020.
The Center appointed Richard C.K. van Oerle as the sole panelist in this matter on July 22, 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.
Complainant is one of the largest providers of senior living services in the United States. Since at least 1981, Complainant has continuously used the trademarks SUNRISE and SUNRISE SENIOR LIVING in United States commerce in connection with the advertising, promotion, distribution and sale of senior living services, including assisted living services, skilled nursing services, retirement home services, and related services.
Complainant1 owns many United States trademark registrations for its SUNRISE marks, including registration No. 2,313,763 (registered on February 1, 2000), No. 2,933,983 (registered on March 15, 2005) and registration No. 2,669,922 (registered on December 31, 2002), all for SUNRISE, and No. 2,850,729 (registered on June 8, 2004) for SUNRISE SENIOR LIVING, hereinafter referred to as the “Trademarks”.
Since 2000, Complainant has used the domain name <sunriseseniorliving.com> as the address for its website.
The Disputed Domain Name has been registered on December 20, 2016. The Disputed Domain Name resolves to a pay-per-click (“PPC”) website with links to competitors of Complainant and those offering similar services to Complainant.
Complainant contends that its SUNRISE-branded services are advertised and offered throughout the United States and that the Trademarks have acquired goodwill and substantial recognition in the United States. For decades, the public has associated SUNRISE-branded senior living services and related services exclusively with Complainant. Complainant operates hundreds of SUNRISE-branded facilities and employs tens of thousands of people.
Complainant further contends that the Disputed Domain Name is identical or substantially similar to Complainant’s trademark SUNRISE as it incorporates the entirety of this trademark. Adding the descriptive words “senior living” which references the target audience for the services that Complainant provides under the Trademarks increases the substantial identity and confusing similarity between Complainant’s Trademarks and the Disputed Domain Name.
The Disputed Domain Name is virtually identical and confusingly similar to the SUNRISE SENIOR LIVING mark. Respondent simply dropped the first letters “se” in the word “senior” in Complainant’s mark SUNRISE SENIOR LIVING so that Disputed Domain Name is <sunriseniorliving.com>.
Complainant alleges that the presence of the generic Top-Level Domain (“gTLD”) “.com” does not reduce the virtual identity between the Trademarks and the Disputed Domain Name.
Second, Complainant further contends that there is no evidence that Respondent is commonly known by “Sunrise” or “Sunrise Senior Living”. The Trademarks are arbitrary for senior living services and related services because the term SUNRISE does not describe an attribute or characteristic of those services. Thus the Disputed Domain Name is not a domain name that Respondent would legitimately choose unless seeking to create an impression of an association with Complainant. It seems very likely that the very purpose in Respondent choosing the Disputed Domain Name was to deliberately create a false impression of association with Complainant.
There is no evidence that Respondent has used or is preparing to use the Disputed Domain Name in connection with the bona fide offering of goods or services or has or is making a legitimate noncommercial or fair use of the Disputed Domain Name.
Complainant further asserts that it has not authorized Respondent to register or use Complainant’s Trademarks. Complainant and Respondent are not affiliated, connected, or associated with one another. Respondent registered and is using the Disputed Domain Name in bad faith, meaning that it lacks rights or legitimate interests in the Disputed Domain Name.
Complainant owns the Trademarks of which the oldest issued nearly two decades before Respondent registered the Disputed Domain Name, and most of these registrations have achieved incontestable status. The fact that the Disputed Domain Name constitutes typosquatting as it is almost identical to the Trademarks leads to the conclusion that the Disputed Domain Name is obvious evidence of the bad faith registration of a domain name.
The website to which the Disputed Domain Name resolves displays PPC links to competitors of Complainant and those offering similar services to Complainant, e.g., links to retirement communities, senior living apartments, and senior living homes.
Even if Respondent did not post those links itself, Respondent cannot disclaim responsibility for content associated with its Disputed Domain Name. Respondent is using the Disputed Domain Name for commercial gain by creating a likelihood of confusion with Complainant’s Trademarks and diverting traffic from Complainant’s website “www.sunriseseniorliving.com”.
Respondent has registered and is using the Disputed Domain Name in bad faith.
Respondent did not reply to Complainant’s contentions.
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trademark in which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) that the Disputed Domain Name has been registered and is being used in bad faith.
The Disputed Domain Name contains, in its entirety and prominently, Complainant’s trademark SUNRISE. The added term “(se)niorliving” is purely descriptive (with a minor, most likely intended, spelling error) for Complainant’s industry. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8 provides that “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms […] would not prevent a finding of confusing similarity under the first element”. In line with this, the Panel decides that the Disputed Domain Name is confusingly similar to Complainant’s trademark SUNRISE.
The Panel also finds that the Disputed Domain Name is confusingly similar to Complainant’s SUNRISE SENIOR LIVING trademark. While the first letters “se” in the word “senior” were dropped in the Disputed Domain Name (<sunriseniorliving.com>), the Complainant’s trademark SUNRISE SENIOR LIVING is sufficiently recognizable in the Disputed Domain Name to be confusingly similar. See WIPO Overview 3.0, section 1.9.
The first condition of the Policy is met.
Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests, see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. Once such prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the Disputed Domain Name. If Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
There is no reason to believe that Respondent’s name somehow corresponds with the Disputed Domain Name, and Respondent does not appear to have any trademark rights associated with the terms “sunrise” or “sunrise senior living”. See VUR Village Trading No. 1 Limited t/a Village Hotels v. Carolina Rodrigues, Fundacion Comercio Electronico, WIPO Case No. D2019-1596.
Respondent is not identified in the WhoIs database as “sunrise” or another name with the element “sunrise”.
From the available record, there is no evidence that Respondent is commonly known by the Disputed Domain Name. The Panel therefore finds under paragraph 4(a)(ii) of the Policy that Respondent is not commonly known by the Disputed Domain Name.
According to Complainant, Respondent is not affiliated with nor authorized by Complainant in any way to use the Trademarks.
The use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of Complainant’s Trademarks or otherwise mislead Internet users (See WIPO Overview 3.0, section 2.9).
Respondent did not claim any rights or legitimate interests, as it did not file a response at all.
Based on these facts, the Panel holds that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and the second condition of the Policy is met.
Given the distinctiveness of Complainant’s Trademarks and reputation at the time of the registration of the Disputed Domain Name, it is reasonable to infer that Respondent has registered the Disputed Domain Name with full knowledge of Complainant’s Trademarks, constituting opportunistic bad faith, especially as Respondent dropped the first letters “se” in the word “senior”, as a result of which the Trademark SUNRISE SENIOR LIVING remains easily recognizable in the Disputed Domain Name. This constitutes typosquatting and is obvious evidence of the bad faith registration of a domain name. (See Wesco Aircraft Hardware Corp. v. Contact Privacy Inc. Customer 1245095601 / Gulf Guns and Gear, WIPO Case No. D2019-2131.)
It is not possible to conceive of a plausible circumstance in which Respondent could legitimately use the Disputed Domain Name.
Through the use of PPC links, Respondent specifically targeted and sought to capitalize off Complainant’s Trademarks by attempting to attract Internet users to the website at the Disputed Domain Name for commercial gain. The bad faith use is further emphasized by the fact that in some cases the links resolve to competitors of Complainant’s business(See e.g., Balenciaga v. PrivacyProtect.org / Level5 Corp., WIPO Case No. D2010-0038).
Moreover, Respondent appears to employ a privacy service. The fact that such services may be employed to prevent Complainant from knowing the identity of the actual underlying registrant of a domain name does not prevent the Panel’s assessment of the UDRP elements. Although the use of a privacy or proxy registration is not in and of itself an indication of bad faith, the manner in which such service is used can in certain circumstances constitute a factor indicating bad faith. Here, the facts set out above, together with the absence of a Response, are sufficient to support a finding of bad faith (See section 3.6 of WIPO Overview 3.0)
For these reasons, the Panel holds that the Disputed Domain Name was registered and used in bad faith and the third condition of the Policy is met.
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 <sunriseniorliving.com> be transferred to Complainant.
Richard C. K. van Oerle
Sole Panelist
Date: August 5, 2020
1 Although the certificates for the registrations submitted as Annex 3 show different names as owners, the Panel established that the invoked trademarks registration are (now) registered in the name of Complainant.