Availity, L.L.C. v. lin yanxiao
Claim Number: FA2107001955211
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availityinsurance.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 14, 2021; the Forum received payment on July 14, 2021.
On July 16, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <availityinsurance.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 9, 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@availityinsurance.com. Also on July 20, 2021, 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 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Availity, L.L.C., maintains its AVAILITY mark with the United States Patent and Trademark Office (USPTO). The disputed domain name is identical or confusingly similar to Complainant’s AVAILITY mark because it wholly incorporates the mark while adding in the generic term “insurance” and the “.com” generic top-level domain (“gTLD”) to form a domain name.
ii) Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name nor has Respondent been authorized to use Complainant’s AVAILITY mark. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the domain name to host links that compete with Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith because Respondent is using the disputed domain name to host competing click-through links. Respondent acted with actual knowledge in Complainant’s AVAILITY mark.
B. Respondent
Respondent did not submit a response.
1. The disputed domain name was registered on March 8, 2021.
2. Complainant has established rights in the AVAILITY mark through its registration with the USPTO (e.g. Reg. No. 2,667,172 – registered on December 24, 2002).
3. The resolving website of the disputed domain name displays hyperlinks related to insurance that direct users to websites of competitors of Complainant.
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 claims rights in the AVAILITY mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). 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).”). Complainant provides copies of its registration certificates with the USPTO (e.g. Reg. No. 2,667,172 – registered on December 24, 2002). Therefore, the Panel finds that Complainant has rights in the AVAILITY mark under Policy ¶ 4(a)(i).
Complainant argues the disputed domain name is identical or confusingly similar to Complainant’s AVAILITY mark because it wholly incorporates Complainant’s AVAILITY mark while adding a generic term “insurance” and the “.com” gTLD to form a domain name. A domain name may be found to be identical or confusingly similar to a mark, under Policy ¶ 4(a)(i), despite the addition of descriptive terms. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
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”).
Complainant first argues that Respondent does not have any rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name nor has Respondent been authorized to use Complainant’s AVAILITY mark. Evidence of a respondent not being commonly known by a domain name, under Policy ¶ 4(c)(ii), may be found where the identifying WHOIS information is unrelated to the domain name and where a respondent lacked authorization to use a complainant’s mark. 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 identifying WHOIS information lists “lin yanxiao” as the registrant. Further, Complainant asserts that Complainant has never provided authorization of any kind which would permit Respondent to use its AVAILITY mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent is using the disputed domain name to host competing links. Use of a domain name to host links to products/services that compete with a complainant may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See 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).”). The resolving website displays a set of hyperlinks to websites of other entities in health insurance and related fields, including competitors of Complainant. Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent registered and uses the disputed domain name in bad faith because Respondent is using the disputed domain name to host competing hyperlinks. Hosting hyperlinks that compete with a complainant may be evidence of bad faith under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 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)”). The resolving website displays hyperlinks related to insurance that direct users to websites of competitors of Complainant. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant also argues Respondent acted with actual knowledge of Complainant’s rights in the AVAILITY mark. Actual knowledge may be found based on a respondent’s use to direct users to competitors of a complainant. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Respondent uses the disputed domain name to advertise health insurance. Each of the links directs users to competitors of Complainant. Respondent would not have been able to register the disputed domain name combining the AVAILITY mark with the term “insurance” as a domain name without having actual knowledge of the AVAILITY mark and Complainant’s use of such mark in connection with processing health insurance claims. The Panel infers, due to the manner of use of the disputed domain name and the way of making the disputed domain name combining Complainant’s AVAILITY mark with the term “insurance” for which Complainant’s mark is used that Respondent registered with actual knowledge of Complainant’s rights in the AVAILITY mark, thus constituting bad faith registration under 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 <availityinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: August 17, 2021
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