Premise Health Holding Corp. v. Elizabeth Reimer / Premise Health
Claim Number: FA2012001925647
Complainant is Premise Health Holding Corp. ("Complainant"), represented by Alexandra MacKay of Stites & Harbison, PLLC, Tennessee, USA. Respondent is Elizabeth Reimer / Premise Health ("Respondent"), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <premisehealth.co>, registered with NameCheap, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 18, 2020; the Forum received payment on December 18, 2020.
On December 18, 2020, NameCheap, Inc. confirmed by email to the Forum that the <premisehealth.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 December 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@premisehealth.co. Also on December 28, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 21, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a direct healthcare company that operates in 45 U.S. states and Guam. Complainant serves more than 2,000 organizations, operates more than 800 wellness centers, and has almost 6,000 team members globally. Complainant owns a U.S. trademark registration for PREMISE HEALTH in standard character form for educational services and managed healthcare services, issued in 2016 and reflecting a first use date of 2014.
The disputed domain name <premisehealth.co> was registered through a privacy registration service in October 2020. The underlying registration data (revealed when the privacy shield was lifted in connection with this proceeding) identify the registrant as Elizabeth Reimer of Premise Health. Complainant provided an affidavit from Elizabeth Reimer, attesting that she is the Chief Human Resources Office for Complainant, and that she did not register the disputed domain name nor authorize anyone to do so on her behalf or using her name or contact information.
The disputed domain name redirects Internet users to Complainant's website. Complainant states that Respondent has used the disputed domain name to create fraudulent accounts with various job search websites, impersonating Complainant and posting fake job postings under Complainant's name. Complainant states that it has not authorized Respondent to use its mark, that Respondent is not a licensee of Complainant or associated or affiliated with it in any way, and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <premisehealth.co> is identical or confusingly similar to its PREMISE HEALTH mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <premisehealth.co> corresponds to Complainant's registered PREMISE HEALTH trademark, omitting the space and appending the ".co" top-level domain. The omission or spaces or addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Cardinal Health, Inc. v. Zhangwei / Zhang Wei, FA 1908971 (Forum Sept. 17, 2020) (finding <cardinalhealth.co> confusingly similar to CARDINAL HEALTH); RH US, LLC v. Domain Admin / Whois Privacy Corp., FA 1788872 (Forum July 2, 2018) (finding <restorationhardware.co> identical to RESTORATION HARDWARE). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It was registered in the name of an executive of Complainant, without that person's authorization, and its sole apparent use has been to impersonate Complainant in connection with a fraudulent scheme. Such use obviously does not give rise to rights or legitimate interests under the Policy.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to Complainant's mark, using a privacy registration service and false underlying registration data, and is using it to impersonate Complainant in connection with a fraudulent scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., DocMagic, Inc. v. Royal Spice, FA 1925947 (Forum Jan. 18, 2021) (finding bad faith in similar circumstances). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <premisehealth.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 22, 2021
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