Walgreens Boots Alliance, Inc. and Walgreen Co. fired a combined salvo against an Indian company, over the domain WellgreenHealth.com.
What was at stake: Wallgreens is a huge American corporation that operates the second-largest pharmacy store chain in the United States, behind CVS Health. It specializes in filling prescriptions, health and wellness products, health information, and photo services.
One would say it’s reasonable that the domain indicated an affiliation with Wallgreens but the Respondent made a good case for themselves. The names are pronounced differently and the Respondent owns and operates a legitimate business in India.
The Forum (NAF) panelist agreed:
Weighing the totality of evidence presented by the parties, the Panel finds that the use made by the Respondent’s connected entity Wellgreen Health is only somewhat competitive since the services offered by the Respondent under the Wellgreen Health website and mark are in the general field of health. The Panel also finds that there is no evidence to show that the Respondent targeted the Complainants or their trademarks. The Complainants’ evidence does not show that the Respondent used the disputed domain name to gain economic advantage by riding on the reputation the Complainants have in their trademarks. The parties’ websites are not similar and the Wellgreen Health website employs a different color scheme and structure. Respondent is shown clearly as the provider of medical and/or Lifestyle medicine related services, which Internet users are not likely to associate with Complainants.
Final decision: Deny the transfer of the domain name WellgreenHealth.com to the Complainant.
The domain transfer was denied.
Copyright © 2024 DomainGang.com · All Rights Reserved.Walgreens Boots Alliance, Inc. and Walgreen Co. v. Amit Bugalia
Claim Number: FA2404002091886
PARTIES
Complainants are Walgreens Boots Alliance, Inc. and Walgreen Co. (“Complainants”), represented by Tiffany D. Gehrke of Marshall, Gertein & Borun LLP, Illinois, USA. Respondent is Amit Bugalia (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is wellgreenhealth.com, registered with Squarespace Domains II LLC.
PANEL
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Jonathan Agmon as Panelist.
PROCEDURAL HISTORY
Complainants submitted a Complaint to Forum electronically on April 4, 2024; Forum received payment on April 4, 2024.
On April 5, 2024, Squarespace Domains II LLC confirmed by e-mail to Forum that the wellgreenhealth.com domain name is registered with Squarespace Domains II LLC and that Respondent is the current registrant of the name. Squarespace Domains II LLC has verified that Respondent is bound by the Squarespace Domains II LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 8, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 2024 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wellgreenhealth.com. Also on April 8, 2024, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on April 29, 2024.
On May 1, 2024, the Complainants submitted an Additional Submission to Forum.
On May 6, 2024, the Respondent submitted an Additional Submission to Forum.
Pursuant to Paragraph 12 of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and Rule 7 of Forum’s Supplemental Rules to ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”), the Panel has the discretion to request for additional submissions from the parties, and/or to accept/reject the additional unsolicited submissions. As the additional submissions were unsolicited, the Panel has elected to reject all additional submissions.
On April 30, 2024, pursuant to Complainants’ request to have the dispute decided by a single-member Panel, Forum appointed Jonathan Agmon as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
RELIEF SOUGHT
Complainants request that the domain name be transferred from Respondent to Complainants.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
The Complaint was filed by two Complainants against a single Respondent.
The Policy does not expressly provide for or prohibit the consolidation of multiple complainants.
Complainants are the holders of the WALGREENS and/or WALGREENS HEALTH marks. Complainants and their predecessors, through their affiliates and licensees, have extensively advertised and promoted the WALGREENS and/or WALGREENS HEALTH mark all over the world.
The Panel finds that the Complainants have a common grievance against the domain name registrant as they have a common legal interest in the trademark rights on which this Complaint is based, and it is equitable and procedurally efficient to permit the consolidation of their complaints.
PARTIES’ CONTENTIONS
A. Complainants
The 1st Complainant is an integrated healthcare, pharmacy, and retail leader. It was formed in 2014 when the 2nd Complainant merged with Alliance Boots. The 1st Complainant has since been the parent company to both the 2nd Complainant and The Boots Company PLC.
The Complainants’ portfolio of brands includes Walgreens, Boots, Duane Reade, the No7 Beauty Company, Benavides, and Ahumada. It has around 130,00 locations across the United States, Europe, and Latin America in 9 countries, with more than 8,900 drugstores in the United States, and more than 4,900 retail stores internationally. For over 130 years, the WALGREENS brand has become a distinctive symbol of high-quality products and services, and substantial goodwill.
The Complainants also provide numerous health services to patients through nationally scaled locally delivered healthcare platforms clinical programs, and strategic collaborations with industry-leading partners and companies. The Complainants have more than 85,000 healthcare service providers, including pharmacists, pharmacy technicians, nurse practitioners, and other health-related professionals. The 1st Complainant’s presence extends beyond the United States and throughout the world.
Complainants are the registered proprietor of various WALGREENS trademarks, including the following trademarks:-
a) U.S. trademark registration no. 1057249 for WALGREENS registered on January 25, 1977;
b) U.S. trademark registration no. 2096551 for WALGREENS registered on September 16, 1997;
c) India trademark registration no. 1362125 for WALGREENS registered on September 20, 2007;
d) India trademark registration no. 2313043 for WALGREENS registered on September 19, 2016;
e) India trademark registration no. 1662684 for WALGREENS HEALTH registered on April 20, 2022;
f) European Union trademark registration no. 1662684 for WALGREENS HEALTH registered on April 20, 2022;
g) United Kingdom trademark registration no. 1662684 for WALGREENS HEALTH registered on April 20, 2022; and
h) U.S. trademark application no. 97371588 for WALGREENS HEALTH filed on April 20, 2022.
Complainants have owned and operated the following domain names:-
– walgreenshealth.com, registered on August 5, 1999;
– walgreensbootsalliance.com, registered on August 5, 2014; and
– walgreens.com, registered on May 4, 1995
The disputed domain name, wellgreenhealth.com, was registered on November 14, 2022, and resolves to a website purporting to offer a variety of healthcare services, information in connection with healthcare, health and wellness, medical consultations, and telehealth medical services which are highly related to those offered by the Complainants under the WALGREENS and/or WALGREENS HEALTH marks.
The Respondent also states on his webpage that he has received certifications from the United States, which indicates that he is quite familiar with entities within the United States.
The disputed domain name is identical or confusingly similar to the registered WALGREENS and/or WALGREENS HEALTH trademarks. The Complainants’ trademarks are inherently distinctive and strong, which attracts the greatest range of protection under US law.
The Respondent’s use of the disputed domain name, which is nearly identical to the Complainants’ WALGREENS and/or WALGREENS HEALTH marks, creates confusion and/or implies an affiliation between the Respondent and the Complainants, which will attract and mislead customers to the Respondent’s financial benefit. The disputed domain name differs from the Complainants’ trademarks by
– substituting “e” for “a”;
– adding an extra “l”; and
– deleting the “s”.
These alterations to the Complainants’ WALGREENS and/or WALGREENS HEALTH trademarks are insignificant. Further, past panels have held that the addition of a generic term followed by a Top Level Domain (gTLD”) “.com”, does not distinguish an otherwise confusingly similar term.
Respondent is not commonly known as “WellGreens Health”. In fact, the Respondent’s identity was redacted at the time of filing the initial Complaint, and his identity had to be obtained through the Registrar. Further, the Respondent will be unable to demonstrate that he became commonly known by the disputed domain name in good faith. The Complainants have had a long-standing web presence, and the Respondent ought to have known, or at least inquired about the Complainants’ trademark rights prior to the registration of the disputed domain name. In fact, the Respondent had a duty to investigate prior to registering the disputed domain name, but he failed to do so. an Internet search for “Wellgreens Health” or “Walgreens Health” would have returned results leading to the Complainants’ websites.
Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name currently resolves to a website offering directly and/or similar healthcare and medical services which compete with the Complainants’ own offerings. The Complainants have not authorized the Respondent to use the WALGREENS trademark. The Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods for sale. the Respondent uses the disputed domain name to compete with the Complainants by diverting Internet users away from the Complainants’ website and to his own.
Respondent registered the disputed domain name in bad faith. The disputed domain name is nearly identical to the WALGREENS and/or WALGREENS HEALTH trademarks, which negates any presumption of the Respondent’s legitimate intentions. The Respondent also uses the disputed domain name to confuse the Complainants’ customers and attempts to unlawfully capitalize on mistaken or confused Internet users to divert traffic to his own website which offers healthcare and medical information, which directly competes with the Complainants’ services. This is likely to distract consumers who incorrectly assume an affiliation with the Complainants, which evidences the Respondent’s bad faith. This is also evidence of the Respondent’s intention to disrupt, and is currently disrupting, the Complainants’ business. The Respondent also knew and had actual knowledge of Complainants’ well-known WALGREENS trademarks and did so when registering the disputed domain name. He registered the disputed domain name despite having no affiliation with the Complainants or not being known by that name. Further, he has used the disputed domain name to offer services that are directly competitive, or closely related to those offered by the Complainants. He also touts that he received certifications in the United States where nearly 80% of the population live within 5 miles of a pharmacy owned by the Complainants. This is further evidence that the Respondent knew of the Complainants and their rights. Further, he had a duty to investigate prior to registering the disputed domain name. He evidently did not as a basic investigation would have revealed that the Complainants had rights in the WALGREENS and/or WALGREENS HEALTH trademarks, and had used the trademarks for many years before he registered the disputed domain name. This is evidence of bad faith.
B. Respondent
Respondent submitted his response to Forum on April 29, 2024.
Respondent stated the disputed domain name is registered to himself. He further stated that the WELLGREEN trademark is owned by Wellgreen Health LLP, an incorporated company in India, and that Wellgreen Health LLP has the exclusive and lawful rights to the disputed domain name. Respondent states that he is the Designated Partner of Wellgreen Health LLP.
The disputed domain name was legally acquired through “Google Domains”, and the Respondent’s use of the disputed domain name is solely for the purpose of providing legitimate healthcare services, which is consistent with the Respondent’s business operations and in accordance with applicable laws and regulations. There is no intention of disrupting the business of the Complainants or to mislead consumers.
The disputed domain name is not identical or confusingly similar to any trademark that the Complainants have rights in. The disputed domain name comprises of the words “well”, “green”, and “health”, which are common English terms descriptive of the Respondent’s wellness and healthcare services. Further, the term “health” is widely used in business and trademark names, and should be disregarded for the purposes of distinguishing the names of the parties.
The Respondent submits that the first syllable of “wellgreen” and “walgreens” are pronounced ‘wɛl’ versus ‘wɔ’ or ‘VEL’ versus ‘VAWL,’, which are significantly different in phonetics and spelling. The substitution of ‘e’ for ‘a,’ the doubling of ‘l,’ and the absence of ‘s’ in ‘WellGreen,’ distinguish both trademarks. Further, the initial syllable ‘Well’ and ‘Wal’ evoke entirely different connotations, with ‘Well’ suggesting goodness, completeness, and wellness, while ‘Wal’ may evoke associations with ‘wall.’
The Respondent’s trademark is distinct from that of the Complainants. There are no similarities in the presentation or writing styles of the names. The Complainants’ logo features “Walgreens” in a red stylized font and “Health” in a blue stylized font, whereas the respondent’s device incorporates a multicolor ‘plus’ symbol representing the six pillars of Lifestyle Medicine, alongside a ‘human figure’ symbolizing well-being at its center. This symbol is combined with the word ‘WellGreen’ and a tagline ‘Your health partner’ to form the trademarked device.
Respondent also notes that all the cited cases refer to domain names starting with “wal” instead of “well”.
Respondent states that he is making legitimate use of the disputed domain name for healthcare services. Wellgreen Health LLP specializes in offering healthcare services, including lifestyle medicine and laboratory medicine. The domain name serves as a crucial component of the respondent’s online platform, enabling the Respondent to deliver these services to its clients and patients.
The Respondent’s services are distinct from those offered by the Complainants, who primarily engage in the sale and trade of medicines and other pharmacy services. The Respondent’s focus is on healthcare, particularly with Lifestyle Medicine at the core.
The business areas of Wellgreen Health LLP and the Complainants are geographically distinct, and the Complainants lack a significant business presence in India. The Respondent is therefore under no obligation to notify the Complainants as he is not using any of the Complainants’ trademarks, goods, services, and is not associated with them.
Respondent also submits that the idea that an internet search for “wellgreen” will not result in results for “walgreens”, and that “wellgreen health” is very different from “Walgreens Health”.
When a trademark is applied for, there will be an announcement to allow stakeholders to raise objections, but the Complainants did not object. Wellgreen Health LLP is also a registered company in India with a legitimate trademark.
The Respondent did not register or acquire the domain name with the primary intention of selling, renting, or transferring it to the Complainants or any competitor. There is no evidence to suggest that the Respondent has engaged in any activities aimed at profiting from the sale or transfer of the domain name for valuable consideration beyond documented out-of-pocket costs directly related to its registration and maintenance. There is no indication that the Respondent registered the domain name to prevent the Complainants or any other trademark owner from reflecting their mark in a corresponding domain name. Wellgreen Health LLP has not engaged in a pattern of such conduct and registered the domain name solely for the purpose of establishing an online presence for its legitimate healthcare services.
Wellgreen Health LLP did not register the disputed domain name wellgreenhealth.com with the intention of disrupting the business of the Complainants. The registration and use of the disputed domain name is solely for the purpose of promoting and providing healthcare services, and there is no evidence to suggest any malicious intent or desire to harm competitors.
The Respondent has not used the disputed domain name to intentionally attract Internet users for commercial gain by creating a likelihood of confusion with the Complainants’ mark. The content and services offered on the website hosted at wellgreenhealth.com are transparent and unrelated to the products or services offered by the Complainants. There is no attempt to mislead or confuse Internet users regarding the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
C. Additional Complainants’ Submissions
Additional Submissions by the Complainants were rejected. The Panel notes that full consideration of the Additional Submissions would not have changed the outcome of this decision.
D. Additional Respondent Submissions
Additional Submissions by the Respondent were rejected. The Panel notes that full consideration of the Additional Submissions would not have changed the outcome of this decision.
FINDINGS
– Complainants’ own rights in the WALGREENS and WALGREENS HEALTH trademarks.
– The wellgreenhealth.com domain name is confusingly similar to the WALGREENS and WALGREENS HEALTH trademarks in which Complainants have rights.
– Complainants have established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, which has not been rebutted.
– Complainants have failed to establish that both registration and use of the disputed domain name by Registrant is in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “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 requires that Complainants must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent are identical or confusingly similar to a trademark or service mark in which Complainants have rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel shall decide this administrative proceeding on the basis of Complainants’ and Respondent’s representations pursuant to paragraphs 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum Jun, 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Policy ¶ 4(a)(i) requires Complainants to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainants have rights.
Registration of a mark with a trademark office suffices to establish the rights under the Policy. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018). (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such a mark for the purposes of Policy ¶ 4(a)(i). Complainants provided evidence that they own the WALGREENS and WALGREENS HEALTH trademarks in the form of trademark certificates from the India IP Office, the EUIPO and the USPTO.
The disputed domain name wellgreenhealth.com contains Complainants’ WALGREENS HEALTH trademark(s) albeit with the addition of the letter “l”, the omission of the letters “a” and “s”, and the addition of the letter “e”. The Panel is of the view that these additions/omissions do not prevent a finding of confusing similarity with the WALGREENS HEALTH trademark since the WALGREENS HEALTH trademark is recognizable within the disputed domain name. See principles set out in WIPO Jurisprudential Overview 3.0 at ¶1.7 and 1.8; see also Stardust Materials v. Neil Ivey, FA 940188 (Forum Jun. 1, 2021).
The Panel rejects the Respondent’s submissions and notes that it is trite trademark law that when performing a trademark confusing similarity analysis, the trademark must be considered as a whole, instead of piecemeal. The Complainant’s trademark WELLGREENS HEALTH and the disputed domain name are more similar then dissimilar in sight, sound and meaning and may have similar commercial impression.
Accordingly, the Panel finds that the domain name wellgreenhealth.com is confusingly similar under Policy ¶ 4(a)(i).
Rights or Legitimate Interests
The Policy ¶ 4(a)(ii) requires Complainants to show that Respondent has no rights or interests in respect of the disputed domain names. Once Complainants establish a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain names, the burden of production shifts to Respondent to show that it has rights or legitimate interests in respect of the disputed domain names. See WIPO Jurisprudential Overview 3.0 at ¶2.1 and Google LLC v. Alex Xavier/ Alexander Xavier / Sustineri Foresight Ltd, FA 2028296 (Forum Mar. 15, 2023).
The Panel finds that Complainants have established a prima facie case that Respondent lacks rights or legitimate interests in respect of the disputed domain names. Complainants provided evidence that they own trademark registrations of the WALGREENS and/or WALGREENS HEALTH marks long before the date the disputed domain name was registered. Complainants are not affiliated with, nor have they licensed or otherwise permitted Respondent to use Complainants’ trademarks. See IndyMac Bank F.S.B. v. Grant Eshback d/b/a eMit Mortgage, Inc., FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the emitmortgage.com domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Next, it is up to Respondent to rebut the prima face case made by Complainant. The Respondent provided evidence showing that Wellgreen Health LLP (“Wellgreen Health”) is the owner of an India Trademark registration for the mark “WellGreen Your health partner” and device. This registration is not owned by the Respondent. The Respondent provided evidence to show he is recorded as the Designated Partner of Wellgreen Health but there was no evidence to show that Wellgreen Health is the owner or even beneficial owner of the disputed domain name.
In addition, there is no evidence that Respondent is commonly known by the disputed domain name. See WIPO Jurisprudential Overview 3.0, ¶2.3 and Foot Locker Retail, Inc. v. Gibson, FA 139693 (Forum Feb. 4, 2003) (“Due to the fame of Complainant’s FOOT LOCKER family of marks . . . and the fact that Respondent’s WHOIS information reveals its name to be ‘Bruce Gibson,’ the Panel infers that Respondent was not ‘commonly known by’ any of the disputed domain names prior to their registration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”).
In considering Policy ¶ 4(c)(iii) the Panel does not agree with Complainants’ assertion that Respondent is not making a legitimate noncommercial or fair use of the domain name. The Panel notes that the Respondent appears to be either working for, or operating Wellgreen Health, and that Wellgreen Health appears to be conducting telehealth consultations using the disputed domain name. However, it is important to note the distinction between the Company and the Respondent in relation to the ownership of the dispute domain name. The disputed domain name is registered to the Respondent and not to the company for which he is designated as the Designated Partner. The Respondent has not submitted that the disputed domain name was registered on behalf of WellGreen Health. Further, the entity to which the WELLGREEN HEALTH trademark is registered to is Wellgreen Health. It would be inappropriate for the Panel to conduct an analysis of the Complaint by ignoring the above and assuming that the Respondent and Wellgreen Health are the same entity.
The Panel notes that the Respondent is aware of this, from the facts that (1) his submissions were amended to reflect that Wellgreen Health is the Respondent instead of himself, and (2) in the submissions, he has used separate terms to refer to himself and Wellgreen Health. An example of this in the submissions is in the discussion of the third limb, where the Respondent deliberately made submissions utilizing both terms, and distinguishing that Wellgreen Health and the Respondent had different roles.
The Panel finds that Respondent has failed to rebut Complainants’ prima facie case and therefore that Respondent has no rights or legitimate interests in respect of the disputed domain names under the Policy. The Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
The Panel finds that Complainants have failed to establish that the disputed domain name was registered and is being used in bad faith.
Respondent did not dispute that Complainants had rights in the WALGREENS and/or WALGREENS HEALTH marks long before he registered the disputed domain name.
Respondent did not deny that he was aware of the Complainants and their trademarks prior to registering the disputed domain name. In fact, he stated that “and to the best of our knowledge, the complainant lacks a meaningful or popular business presence in India”. Further, the Respondent was educated in, and obtained qualifications in the United States, where the Complainants have a significant presence. He would therefore be well aware that the Complainants’ primary area of business is in the healthcare/pharmaceutical sector.
Given the above, the Panel finds it hard to accept that the Respondent was unaware of the Complainants and their WALGREENS and/or WALGREENS HEALTH trademarks at the time of registration of the disputed domain name. However, the finding that Respondent was aware of the Complainants and their trademarks is not sufficient. It is indicative of bad faith but the Panel is instructed to consider the totality of the circumstances.
In their submissions, the Complainants argue, in additional to Respondent’s knowledge of Complainants and their marks, that the Respondent intentionally attempted to divert Complainant’s customers by creating a likelihood of confusion, and that Respondent used the Complainants’ marks to disrupt and/or compete with Complainants’ business.
Complainants’ sole evidence is a copy of the website operated under the disputed domain name showing that the Respondent is offering health related services, which they consider are closely related to the services they provide under their WALGREENS marks and on their website(s). The Complainants’ position is that since both parties are in closely related fields of practice and their marks WALGREENS and WELLGREEN are similar, the Respondent’s use of the disputed domain name is in bad faith. The Respondent disagreed and states that he is a medical doctor. That under his Diplomate of the International Board of Lifestyle Medicine (DipIBLM), he is authorizing Walgreen Health to deliver healthcare and Lifestyle Medicine services within his rights. To this end the Respondent provided evidence of his qualifications. The Respondent argues that none of the Policy ¶ 4(b) circumstances has been shown.
Weighing the totality of evidence presented by the parties, the Panel finds that the use made by the Respondent’s connected entity Wellgreen Health is only somewhat competitive since the services offered by the Respondent under the Wellgreen Health website and mark are in the general field of health. The Panel also finds that there is no evidence to show that the Respondent targeted the Complainants or their trademarks. The Complainants’ evidence does not show that the Respondent used the disputed domain name to gain economic advantage by riding on the reputation the Complainants have in their trademarks. The parties’ websites are not similar and the Wellgreen Health website employs a different color scheme and structure. Respondent is shown clearly as the provider of medical and/or Lifestyle medicine related services, which Internet users are not likely to associate with Complainants. The Complainants did not direct the attention of the Panel to any specific circumstances indicating that Respondent has intentionally attempted to attract for commercial gain, Internet users to Wellgreen Health’s website and as a result is creating a likelihood of confusion as to the “source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location.” See Policy ¶ 4(b)(iv). It is well established that the UDRP jurisdiction does not extend to resolving disputes for alleged trademark infringement. Rather, it is focused on abusive registrations. In this case, there is no evidence to show that Respondent is taking advantage of Complainants’ marks in such an abusive manner, especially given the particular circumstances of the case, which include the existence of concurrent registrations of the parties’ marks in India, the differences between the parties’ websites, the difference in services offered and the different jurisdictions where the parties operate.
The Panel finds that Complainants have failed to establish Policy ¶ 4(a)(iii).
DECISION
Having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Jonathan Agmon as Panelist
Dated: May 14, 2024
