Spectrum Health v. leed johnny / Jiang Li / Li Jin Liang
Claim Number: FA2107001953584
Complainant is Spectrum Health (“Complainant”), represented by Malaina J Weldy of Warner Norcross + Judd LLP, Michigan, USA. Respondent is leed johnny / Jiang Li / Li Jin Liang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <spectrumjealth.org>, <specttrumhealth.org>, <spectrrumhealth.org>, <spectruhealth.org>, <sectrumhealth.org>, <spectrumhealh.org>, <specctrumhealth.org>, <sspectrumhealth.org>, <sprctrumhealth.org>, <spectrumhealyh.org>, <spectrumheslth.org>, <soectrumhealth.org>, <spevtrumhealth.org>, <spectrumgealth.org>, <spectrumhealtg.org>, <spectrumhealrh.org>, <specyrumhealth.org>, <spectrumhralth.org>, <spectrumheakth.org>, and <specteumhealth.org>, registered with Xin Net Technology Corporation (the “disputed domain names”.)
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 1, 2021; the Forum received payment on July 1, 2021. The Complaint was received in English.
On July 6, 2021, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <spectrumjealth.org>, <specttrumhealth.org>, <spectrrumhealth.org>, <spectruhealth.org>, <sectrumhealth.org>, <spectrumhealh.org>, <specctrumhealth.org>, <sspectrumhealth.org>, <sprctrumhealth.org>, <spectrumhealyh.org>, <spectrumheslth.org>, <soectrumhealth.org>, <spevtrumhealth.org>, <spectrumgealth.org>, <spectrumhealtg.org>, <spectrumhealrh.org>, <specyrumhealth.org>, <spectrumhralth.org>, <spectrumheakth.org>, and <specteumhealth.org> domain names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 12, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of August 2, 2021 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@spectrumjealth.org, postmaster@specttrumhealth.org, postmaster@spectrrumhealth.org, postmaster@spectruhealth.org, postmaster@sectrumhealth.org, postmaster@spectrumhealh.org, postmaster@specctrumhealth.org, postmaster@sspectrumhealth.org, postmaster@sprctrumhealth.org, postmaster@spectrumhealyh.org, postmaster@spectrumheslth.org, postmaster@soectrumhealth.org, postmaster@spevtrumhealth.org, postmaster@spectrumgealth.org, postmaster@spectrumhealtg.org, postmaster@spectrumhealrh.org, postmaster@specyrumhealth.org, postmaster@spectrumhralth.org, postmaster@spectrumheakth.org, postmaster@specteumhealth.org. Also on July 12, 2021, the Chinese language 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 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the same person or entity controls the disputed domain names, operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that, since the disputed domain names are all typosquatted versions of Complainant’s SPECTRUM HEALTH mark, are registered with the same registrar, 19 of the 20 domain names have the same IP address and resolve to the same webpages, and share similar registrant information, they are controlled by the same entity. The Panel agrees and will refer to the named Respondents collectively as “Respondent” throughout this Decision.
PRELIMINARY ISSUE: REQUIRED LANGUAGE OF COMPLAINT
Complainant alleges that, because Respondent is conversant in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant argues that the proceeding should be conducted in English because the disputed domain names are all typosquatted versions of Complainant’s SPECTRUM HEALTH mark and they resolve to webpages featuring English words. Complainant would incur significant burden and expense if required to translate documents. The Panel finds that Respondent is conversant in English and will conduct this proceeding in English.
A. Complainant
1. Respondent’s disputed domain names are confusingly similar to Complainant’s SPECTRUM HEALTH mark.
2. Respondent does not have any rights or legitimate interests in the disputed domain names.
3. Respondent registered and uses the disputed domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Spectrum Health, provides healthcare services and holds a registration for the SPECTRUM HEALTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 5,924,104, registered Dec. 03, 2019). The Registration shows a first commercial use date of May 1, 2008, and an earlier use date in 1997 for the mark in a different form.
Respondent registered the disputed domain names as follows:
December 14, 2016: <spectruhealth.org>.
September 9, 2017: <specttrumhealth.org>, <spectrrumhealth.org>, <spectrumhealh.org>, <specctrumhealth.org>, <sprctrumhealth.org>, <spectrumheslth.org>, <spectrumgealth.org>, <spectrumhealrh.org>, <spectrumhralth.org>, <specteumhealth.org>.
November 22, 2017: <sspectrumhealth.org>.
November 25, 2017: <sectrumhealth.org>, <soectrumhealth.org>.
March 20, 2019: <spectrumjealth.org>, <spectrumhealyh.org>, <spectrumhealtg.org>, <specyrumhealth.org>, <spectrumheakth.org>
December 16, 2019: <spevtrumhealth.org>.
Respondent holds the disputed domain names inactively, except for the <spevtrumhealth.org> domain name, which resolves to pay-per-click hyperlinks.
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 SPECTRUM HEALTH mark based on registration with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel notes that the SPECTRUM HEALTH mark was not registered until December 3, 2019, after the registration dates of all but one of the disputed domain names. However, the Trademark Registration Certificate shows a first commercial use date of May 1, 2008, and an earlier use date in 1997 for the mark in a different form. Complainant demonstrates that it has been in business for over 20 years, owns the <spectrumhealth.org> domain name, and had $7.26 billion in revenues in the 2019 fiscal year. The Panel finds that Complainant holds common law rights in the SPECTRUM HEALTH mark that predate the registrations of the disputed domain names. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”); see also Goodwin Procter LLP v. Amritpal Singh, FA 1736062 (Forum July 18, 2017) (holding that the complainant demonstrated its common law rights in the GOODWIN mark through evidence of “long time continuous use of the mark, significant related advertising expenditures, as well as other evidence of the mark’s having acquired secondary meaning.”).
Respondent’s disputed domain names a consist of misspelled versions of the SPECTRUM HEALTH mark and the “.org” gTLD. The misspelling of a mark and the addition of a gTLD do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Wells Fargo & Company v. VALERIE CARRINGTON, FA 1621718 (Forum July 2, 2015) (finding that the <wllsfago.com> domain name is confusingly similar to the WELLS FARGO mark as the domain name merely omits the “e” and “r” from the mark while adding the “.com” gTLD suffix.); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s SPECTRUM HEALTH mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the domain names and Complainant has not authorized Respondent to use the SPECTRUM HEALTH mark. The WHOIS information identifies “leed johnny / Jiang Li / Li Jin Liang.” The Panel therefore finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names); see also SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.).
Complainant also argues that Respondent does not use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as all of them are inactive, except for the <spevtrumhealth.org> domain name, which resolves to pay-per-click hyperlinks. Using disputed domain names to resolve to an inactive website, or to resolve to a parked page with monetized hyperlinks, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”); see also The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides screenshots showing that all but one of the disputed domain names resolves to a webpage with no content but a disclaimer, and that the <spevtrumhealth.org> domain name resolves to a page with pay-per-click hyperlinks. The Panel finds that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the disputed domain names in bad faith because Respondent uses the disputed domain names to attract users for commercial gain by causing confusion as to Complainant’s connection with the domain names. Under Policy ¶¶ 4(b)(iii) and (iv), bad faith may be found when a respondent uses a confusingly similar domain name to attract users, cause confusion, and divert users to an inactive webpage or parked hyperlinks. See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see additionally Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). The Panel finds that Respondent registered the disputed domain names to disrupt Complainant’s business and profit from the association with Complainant, and thus registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent engages in typosquatting. Typosquatting is the purposeful misspelling of a mark in a disputed domain name and is itself evidence of bad faith. See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 16070016833 (Forum Aug. 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.”). Accordingly, the Panel finds further bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <spectrumjealth.org>, <specttrumhealth.org>, <spectrrumhealth.org>, <spectruhealth.org>, <sectrumhealth.org>, <spectrumhealh.org>, <specctrumhealth.org>, <sspectrumhealth.org>, <sprctrumhealth.org>, <spectrumhealyh.org>, <spectrumheslth.org>, <soectrumhealth.org>, <spevtrumhealth.org>, <spectrumgealth.org>, <spectrumhealtg.org>, <spectrumhealrh.org>, <specyrumhealth.org>, <spectrumhralth.org>, <spectrumheakth.org>, and <specteumhealth.org> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 10, 2021
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