New York Quality Healthcare Corporation d/b/a Fidelis Care v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1907001852792
Complainant is New York Quality Healthcare Corporation d/b/a Fidelis Care (“Complainant”), represented by Peter S. Sloane of Leason Ellis LLP, New York, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fidaliscare.org>, <fidelascare.org>, <ffideliscare.org>, and <fidelliscare.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 18, 2019; the Forum received payment on July 18, 2019.
On July 19, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <fidaliscare.org>, <fidelascare.org>, <ffideliscare.org>, and <fidelliscare.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 2019 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@fidaliscare.org, postmaster@fidelascare.org, postmaster@ffideliscare.org, postmaster@fidelliscare.com. Also on July 29, 2019, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant provides health insurance. Complainant has rights in the FIDELIS CARE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,633,561, registered June 9, 2009). See Amend. Compl. Ex. B. Respondent’s <fidaliscare.org>, <fidelascare.org>, <ffideliscare.org>, and <fidelliscare.com> domain names each have misspelled versions of Complainants mark, along with the “.org” or “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the disputed domain names as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. The <fidelascare.org> and <ffideliscare.org> domain names resolve to parked pages where Respondent provides links to third-party websites that compete with Complainant. The <fidaliscare.org> and <fidelliscare.com> domains redirect to fraudulent, scam, phishing and/or malware distribution pages in which a fraudulent notice is displayed to the user indicating that his or her computer has been disabled, and requests the user to contact a phone number to fix the error.
Respondent registered and used the disputed domain names in bad faith, as Respondent has a pattern of bad faith registrations. Respondent’s <fidelascare.org> and <ffideliscare.org> domain names attract users for commercial gain by hosting competing hyperlinks. Respondent’s <fidaliscare.org> and <fidelliscare.com> domain names are being used in a fraudulent phishing scheme. Finally, Respondent engaged in typosquatting when it registered the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding. <fidaliscare.org>, <fidelascare.org>, <ffideliscare.org>, and <fidelliscare.com> domain names were registered on December 7, 2018, December 3, 2018, January 4, 2019, and February 4, 2019, respectively
The Panel finds that the disputed domain names are each confusingly similar to Complainant’s trademark; that Respondent has not rights or legitimate interests in or to the disputed domain names; and that Respondent has engaged in bad faith use and registration of the disputed domain names.
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 Complainant 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 is identical or confusingly similar to a trademark or service mark in which Complainant has 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 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 June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark. Complainant has adequately plead its rights and interests in and to its trademark. The disputed domain names each have misspelled versions of Complainants mark, along with the “.org” or “.com” generic top-level domain (“gTLD”). This is insufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
The Panel further fins that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain names. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. The <fidelascare.org> and <ffideliscare.org> domain names resolve to parked pages where Respondent provides links to third-party websites that compete with Complainant. The <fidaliscare.org> and <fidelliscare.com> domains redirect to fraudulent, scam, phishing and/or malware distribution pages in which a fraudulent notice is displayed to the user indicating that his or her computer has been disabled, and requests the user to contact a phone number to fix the error.
This is not conduct consistent with a bona fide use in commerce or a fair use. As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain names.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Complainant argues Respondent registered and used the disputed domain names in bad faith, as Respondent has a pattern of bad faith registrations. Specifically, Complainant contends that Respondent has been the subject of 42 prior UDRP decisions in which it was ordered to transfer the domain names. Bad faith registration can be evidenced by having multiple UDRP decisions that resulted in transfer of the disputed domain name in question per Policy ¶4(b)(ii). See Jeffrey Dean Lindsay v. Lisa Katz / Domain Protection LLC, FA 1787275 (Forum July 3, 2018) (“A reverse-WHOIS search for domain names registered to Lisa Katz (the person behind Respondent), reveals over 100 domains. “Of this list, 67 use the same email, support@domainp.net, as the Complainant.” A search at the Forum, http://www.adrforum.com/SearchDecisions, for cases with “Lisa Katz” in the case title reveals 21 cases, 19 of which resulted in decisions to transfer (one was denied and one was withdrawn). Respondent has been involved in 28 WIPO cases. Respondent registered and used the disputed domain name in bad faith under Policy ¶4(b)(ii)”). Here, Complainant provides a screenshot of a Forum’s Domain Name Disputed Proceedings and Decisions database search for the Respondent that resulted in a transfer, showing 42 instances of a decision to transfer a disputed domain name registered by Respondent. See Amend. Compl. Ex. F. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(ii).
Additionally, Complainant argues Respondent registered and used the disputed domain names in bad faith, as Respondent’s <fidelascare.org> and <ffideliscare.org> domain names attract users for commercial gain by hosting competing hyperlinks. Registration and use of a disputed domain name to host hyperlinks to attract Internist users for commercial gain can be evidence of bad faith under Policy ¶¶ 4(b)(iii) and/or (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Here, Complainant provided screenshots of the resolving webpages for the <fidelascare.org> and <ffideliscare.org> domain names, showing hyperlink advertisements for health care products and services that compete with Complainant. See Amend. Compl. Ex. D. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Furthermore, Complainant argues Respondent registered and used the disputed domain names in bad faith, as Respondent’s <fidaliscare.org> and <fidelliscare.com> domains are used for a phishing scheme or to install malicious software on Internet users computers. Registrations and use of a disputed domain name to further a phishing scheme or to install malware can be evidence of bad faith under Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been registered, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Complainant provided screenshots of the <fidaliscare.org> domain name’s resolving webpage, showing an error box informing the user that their computer is disabled and instructing them on what is needed from the user. See Amend. Compl. Ex. E. Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Finally, Complainant argues Respondent registered and used the disputed domain names in bad faith, as Respondent is typosquatting. Taking advantage of common typographical errors when registering a disputed domain name can be evidence of bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum August 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). The <fidaliscare.org> and <fidelascare.org> domain names misspell the FIDELIS CARE mark by replacing the letter “e” with an “a” and “i” with an “a”, while the <ffideliscare.org> and <fidelliscare.com> domain names adds an additional letter “f” and “l.” Therefore, the Panel finds that Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Finally, given the fame of the trademark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant and Complainant’s rights and interests in and to the disputed domain names.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fidaliscare.org>, <fidelascare.org>, <ffideliscare.org>, and <fidelliscare.com> domain names be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 24, 2019
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