Westmore · UDRP Decision24hoursfitnesslocations.com
The Panel ordered transfer of <24hoursfitnesslocations.com>. It found the Complainant’s 24 HOUR FITNESS mark recognizable in the domain despite pluralization of “HOUR” and addition of “locations.” The Respondent did not rebut the Complainant’s prima facie showing on rights or legitimate interests. Bad faith was found because the mark had been deliberately appropriated and the domain’s effectively unused status did not preclude bad faith where any use would likely suggest association with or authorization by the Complainant.
The timeline behind 24hoursfitnesslocations.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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The decision illustrates how a recognizable trademark remains confusingly similar when altered only by a minor pluralization and addition of a term related to the trademark owner’s business. It also demonstrates that effective non-use does not insulate a registrant from a bad-faith finding where the domain’s composition makes likely use inherently suggestive of affiliation or authorization.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION 24 Hour Fitness USA, LLC v. chen xiansheng, gname Case No. D2021-2665 1. The Parties The Complainant is 24 Hour Fitness USA, LLC, United States of America, represented by Willkie Farr & Gallagher LLP, United States of America. The Respondent is chen xiansheng, gname, Singapore. 2. The Domain Name and Registrar The disputed domain name <24hoursfitnesslocations.com> is registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2021. On August 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 2, 2021, 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 the Complainant on September 10, 2021 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 amended Complaint on September 13, 2021. 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 September 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 4, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2021 The Center appointed George R. F. Souter as the sole panelist in this matter on October 26, 2021. 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 is a US corporation which, for over 30 years, has operated fitness clubs under its trademark 24 HOUR FITNESS trademark, and currently operates hundreds of such clubs throughout the USA. Details of registration of its 24 HOUR FITNESS trademark, and associated trademarks have been supplied to the Panel. These registrations include US Registration No 5,693,248, registered on March 5, 2019, in respect of its 24 HOUR FITNESS trademark. The disputed domain name was registered on June 8, 2021, and it resolves to a single page website, a photograph of which follows: 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its 24 HOUR FITNESS trademark, containing the Complainant’s 24 HOUR FITNESS trademark in its entirety, with the mere pluralisation of the word HOUR, and the non-distinctive element “locations”. The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular, to the best of the Complainant’s knowledge, the Respondent is not generally known by the disputed domain name, and the Respondent has never received permission from the Complainant to use its 24 HOUR FITNESS trademark in connection with a registration of a domain name, or otherwise. The Complainant alleges that the disputed domain was registered in bad faith, and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar It is well established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top Level Domain (“gTLD”) is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the gTLD “.com” to be irrelevant in the circumstances of the present case, and so finds. The Complainant’s 24 HOUR FITNESS trademark is clearly recognizable in the disputed domain name. The pluralisation of the word HOUR of the Complainant’s trademark is, in the Panel’s opinion, trivial, and the additional word “locations” does not, in the circumstances of the present case, avoid a finding of confusing similarity, and the Panel so finds. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy. The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case. Accordingly, and noting the Panel’s further findings below, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel regards it as self-evident from the evidence supplied, that the Complainant’s 24 HOUR FITNESS trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, and so finds. In the Panel’s opinion, it is unlikely that many of the population of the United States would be capable of extracting a meaning from the text of the website operated under the disputed domain name, so that the disputed domain name can be considered as being effectively unused. Nor is the website at the disputed domain name seemingly used with any dictionary meaning of the terms “24hoursfitnesslocations”. Since the decision in Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , it has become well-established in prior decisions under the Policy that the lack of use of a disputed domain name does not avoid a finding of use in bad faith, if use of the disputed domain name is likely to cause damage to the complainant’s interests. In the Panel's opinion, the circumstances of the present case, in which the Panel considers that any use of the disputed domain name would be likely to give the impression that it was associated with or authorized by the Complainant, are such as to justify a finding of use in bad faith, and the Panel so finds. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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 <24hoursfitnesslocations.com> be transferred to the Complainant. George R. F. Souter Sole Panelist Date: November 9, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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