Availity, L.L.C. v. Zhichao Yang
Claim Number: FA2009001912008
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Florida, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availituy.com>, registered with Name.com, Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 11, 2020; the Forum received payment on September 11, 2020.
On September 14, 2020, Name.com, Inc. confirmed by e-mail to the Forum that the <availituy.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 September 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2020 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@availituy.com. Also on September 15, 2020, 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 October 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Availity LLC, offers goods and services related to health insurance. Complainant has rights in the AVAILITY mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered December 24, 2002). Respondent’s <availituy.com> domain name is confusingly similar to Complainant’s AVAILITY mark because it uses the mark in full, merely adding the letter “u” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <availituy.com> domain name. Respondent is not authorized to use Complainant’s AVAILITY mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to display click-through links to related commercial websites.
Respondent registered and uses the <availituy.com> domain name in bad faith. Respondent attempts to attract Internet users to its website for commercial gain by displaying pay-per-click links. Additionally, Respondent’s domain name registration constitutes typosquatting. Further, Respondent uses a privacy service to conceal its identity and provides false or misleading WHOIS information. Finally, Respondent had actual knowledge of Complainant’s rights in the AVAILITY mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <availituy.com> domain name
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”).
Complainant asserts rights in the AVAILITY mark based upon the registration with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in the mark per Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Complainant provides evidence of its trademark registration (e.g., Reg. No. 2,667,172, registered December 24, 2002. The Panel finds that that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <availituy.com> domain name is confusingly similar to Complainant’s AVAILITY mark because it uses the mark in full, merely adding the letter “u” and the “.com” gTLD. Misspelling a mark by adding or removing a single letter and adding a gTLD may not negate confusing similarity between the mark and a disputed domain name per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <availituy.com> domain name because Respondent is not authorized to use Complainant’s AVAILITY mark and is not commonly known by the disputed domain name. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a mark constitutes further showing that a respondent lacks rights in a mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record lists “Zhichao Yang” as the registrant and no information suggests that Complainant has authorized Respondent to use the AVAILITY mark in any way. The Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent doesn’t use the <availituy.com> domain for any bona fide offering of goods or services or legitimate noncommercial or fair use, but instead uses the domain to display click-through links to related commercial websites. Use of a disputed domain name to host hyperlinks is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides a screenshot of the resolving webpage and the hyperlinks present on the page. The Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) and has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <availituy.com> domain name in bad faith since Respondent attempts to attract Internet users to its website for commercial gain by displaying pay-per-click links. Use of a disputed domain name to host a links page can be evidence of bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Complainant provides screenshots of Respondent’s website and notes that the links redirect users to websites of other entities in the health insurance and medical record fields. This is evidence that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent’s domain name registration constitutes
typosquatting. Typosquatting may act as independent evidence of bad faith
registration and use under Policy
¶ 4(a)(iii). See Under
Armour, Inc. v. JEFF RANDALL,
FA1410001585022 (Forum Nov. 18,
2014) (finding that the respondent’s <unerarmour.com> domain name
constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is
evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that
Respondent’s misspelling of the AVAILITY mark for use in the <availituy.com>
domain name constitutes
typosquatting. This is evidence that Respondent registered and uses the
disputed domain in bad faith under Policy ¶ 4(a)(iii).
Complainant claims that Respondent had actual knowledge of Complainant’s rights in the AVAILITY mark. Actual knowledge of a complainant’s rights in a mark evidences bad faith under Policy ¶ 4(a)(iii) and may be shown by the totality of circumstances surrounding registration and use. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters – the addition of the “www” prefix to a known trademark, in this case the DOGPILE mark. Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inference [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Complainant argues that Respondent’s intentional misspelling of the AVAILITY mark indicates that Respondent had actual knowledge of the mark when it registered the disputed domain name. The Panel finds from all of the evidence, including the misspelling of the mark, and use made of the mark, that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <availituy.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
October 19, 2020
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