DaVita Inc. v. Shawn Leckie
Claim Number: FA2012001923705
Complainant is DaVita Inc. (“Complainant”), represented by Miriam D. Trudell of Sheridan Ross P.C., Colorado, USA. Respondent is Shawn Leckie (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <careers-davita.com> (‘the Domain Name’), registered with Wild West Domains, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2020; the Forum received payment on December 3, 2020.
On December 4, 2020, Wild West Domains, LLC confirmed by e-mail to the Forum that the <careers-davita.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 December 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 29, 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@careers-davita.com. Also on December 9, 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 January 2, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark DAVITA, registered, inter alia, in the USA for renal health services with first use recorded as 2000. It has a web career page at careers.davita.com.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s mark adding only a hyphen, the generic term ‘careers’ and the gTLD “.com”.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name does not resolve to an active web site but has been used for an employment phishing scam using the Complainant’s logo and the name of one of the Complainant’s Human Resources people to purport to be the Complainant. This is not a bona fide offering of goods or services. It is registration and use in opportunistic bad faith defrauding job applicants and collecting their personal information for fraudulent purposes with actual knowledge of the Complainant and its business and preventing the Complainant from registering an equivalent domain name. The Respondent has also used a privacy service which can also be an indication of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark DAVITA, registered, inter alia, in the USA for renal health services with first use recorded as 2000. They have a web career page at careers.davita.com.
The Domain Name registered in 2020 has been used for an employment phishing scam using the Complainant’s logo and making false use of the actual name of one of the Complainant’s Human Resources people.
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 Domain Name consists of the Complainant’s mark DAVITA (registered, inter alia, in the USA for renal health services with first use recorded as 2000), a hyphen, the generic term ‘careers and the gTLD “.com”.
The addition of the generic word ‘careers’ does not serve to distinguish the Domain Name from the Complainant’s mark which is still recognizable in the mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i)). Nor does the addition of a hyphen. See Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i)).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Domain Name has been used in a fraudulent e mail and text phishing scheme using the Complainant’s logo and making false use of the name of one of the Complainant’s human resource people. The Domain Name is also similar to the url for the Complainant’s career page at careers.davita.com. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of a complainant’s mark in a fraudulent scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii).)
In the opinion of the Panelist, the use made of the Domain Name in relation to an e mail and text phishing scam is confusing in that recipients of the electronic communications will reasonably believe the communications are connected to or approved by the Complainant as the Complainant’s logo, a similar wordstring to the genuine career web page of the Complainant and the name of one of the Complainant’s human resource people is falsely used. This mimicking by the Respondent of the Complainant shows that the Respondent was aware of the Complainant and its business, rights and services and constitutes passing off. See Qatalyst Partners L.P. v. Devinmore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶ 4(b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <careers-davita.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 4, 2021
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