LifeWave, Inc. v Daniel Spain

WIPO Case No. D2023-2840

ARBITRATION

AND

MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

LifeWave, Inc. v. Daniel Spain

Case No. D2023-2840

1. The Parties

The Complainant is LifeWave, Inc., United States of America (“United States” or “US”), represented by

ARC IP Law, P.C, United States.

The Respondent is Daniel Spain, Spain.

2. The Domain Name and Registrar

The disputed domain name <lifewave.site> (the “Disputed Domain Name”) is registered with

GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 4, 2023. connection with the Disputed Domain Name. On July 5, 2023, 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 (Domains By Proxy, LLC) and contact information in the Complaint. The Center sent an email communication to the Complainant on July 14, 2023 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 19, 2023.

The Center verified that the Complaint together with the amendment 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 the Respondent of the Complaint, and the proceedings commenced on July 20, 2023. In accordance with the Rules, paragraph 5, the due date for Response was August 9, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2023.

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The Center appointed Nick J. Gardner as the sole panelist in this matter on August 28, 2023. 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 in this administrative proceeding is LifeWave, Inc., a corporation organized under the laws of the State of Georgia in the United States.

The Complainant is the owner of United States Trademark Registration No. 5,285,572, registered on September 12, 2017, for the word “lifewave” (the “LIFEWAVE” trademark) for Non-transdermal adhesive patches with a non-porous surface for phototherapy for general wellness. It also owns various other registered trademarks for the word lifewave in stylised form. It also owns US Trademark Registration No.6189074 registered on November 3 2020 which is for the following Mark consists of a circular design comprised of patterned dots device.

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5. Parties’ Contentions

A. Complainant

The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Disputed Domain name.

Notably, the Complainant contends that the Respondent’s use of the LIFEWAVE SUNFLOWER trademark as the background image on the Respondent’s Website shows that the Respondent knew of and was deliberately targeting the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Preliminary Matters

e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909).

The Panel notes that no communication has been received from the Respondent. However, given the favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see,
Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel
considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably
available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed

to determine this Complaint and to draw inferences from the Respondent’s failure to file any

Substantive Matters

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:

(i) the Disputed Domain Name is identical with 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 Disputed Domain Name;

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), section 1.7.

The Complainant has rights in the LIFEWAVE trademark. The Panel finds the Disputed Domain Name is identical to this trademark. It is well established that the generic Top-Level Domain (“gTLD”), in this case “.site”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

Accordingly the Panel finds that the Disputed Domain Name is identical to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

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B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:

(i) before any notice to the respondent of the dispute, use 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 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 consumers or to tarnish the trademark or service mark at issue.

None of these apply in the present circumstances. The Complainant has not authorised, licensed, or
permitted the Respondent to register or use the Disputed Domain Name or to use the LIFEWAVE
trademark. The Complainant has prior rights in the LIFEWAVE trademark which precede the Respondent’s
acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case
that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and
thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or
legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic

Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case

No. D2003-0455).

The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

The Disputed Domain Name was linked to the Respondent’s Website which by its use of the LIFEWAVE the Complainant. This leads the Panel to conclude the registration and use were in bad faith.

Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from
reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such

conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a

competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet
users to your 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 your web site or location or of a product or
service on your web site or location.

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The Panel notes that in any event the list paragraph 4(b) of the Policy is non exhaustive and takes the view that the registration of the Disputed Domain Name with knowledge of the Complainant’s trademark (which the Respondent must have had) is itself evidence of bad faith – see The Channel Tunnel Group Ltd. v. John Powell, WIPO Case No. D2000-0038.

In the present case the Panel adopts this approach and notes in particular the Respondent’s failure to provide any evidence of actual or contemplated good-faith use.

Accordingly the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.

7. Decision

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, <lifewave.site> be transferred to the Complainant.

/Nick J. Gardner/
Nick J. Gardner
Sole Panelist
Date: September 11, 2023

This trademark is referred to as the LIFEWAVE SUNFLOWER trademark in this Decision – this is the term the Complainant uses to describe it.

The Disputed Domain Name was registered on April 17, 2023. At the time of this Decision it resolves to a website carrying the following text in white on a black background:

“Life Wave
Maintenance mode is on
Site will be available soon.
Thank you for your patience

© life Wave 2023”

The filed evidence shows that previously the Disputed Domain Name resolved to a website
(the “Respondent’s Website”) carrying the same text but against a background that comprised what

appears to be an identical copy of the LIFEWAVE SUNFLOWER trademark.

No further information is available about the Respondent.