Intermountain Healthcare, Inc. v. Jason Chynoweth / intermountainshealthcare
Claim Number: FA2109001966445
Complainant is Intermountain Healthcare, Inc. (“Complainant”), represented by Justin B. Perri of Blackstone Law Group LLP, New York, USA. Respondent is Jason Chynoweth / intermountainshealthcare (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <intermountainshealthcare.org>, registered with Tucows Domains Inc.
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 September 27, 2021; the Forum received payment on September 27, 2021.
On September 27, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <intermountainshealthcare.org> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 29, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 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@intermountainshealthcare.org. Also on September 29, 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 October 22, 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <intermountainshealthcare.org> domain name is confusingly similar to Complainant’s INTERMOUNTAIN HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <intermountainshealthcare.org> domain name.
3. Respondent registered and uses the <intermountainshealthcare.org> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Intermountain Healthcare, Inc., operates several healthcare facilities throughout Utah and Idaho. Complainant holds a registration for the INTERMOUNTAIN HEALTHCARE mark with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <intermountainshealthcare.org> domain name on August 23, 2021, and uses it to resolve to a parked page, and to pass off as Complainant in phishing emails.
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 Panel finds that Complainant has rights in the INTERMOUNTAIN HEALTHCARE mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <intermountainshealthcare.org> domain name uses the INTERMOUNTAIN HEALTHCARE mark and simply adds the letter “s” and the “.org” gTLD. A domain name may be identical or confusingly similar to a complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of a letter and gTLD to a complainant’s mark. See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”); see also ADESA, Inc. v. James Louis, FA 1736761 (Forum July 19, 2017) (“Panels routinely find that slight differences between domain names and registered marks, such as the addition of a “gTLD” or removal of a space, are irrelevant and do not distinguish the domain name from the mark incorporated therein… Accordingly, the Panel finds that Respondent’s <adesa.org> domain name is identical to Complainant’s ADESA mark.”). The Panel finds that Respondent’s <intermountainshealthcare.org> domain name is confusingly similar to Complainant’s INTERMOUNTAIN HEALTHCARE 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 any rights or legitimate interests in the <intermountainshealthcare.org> domain name because Respondent is not commonly known by the <intermountainshealthcare.org> domain name and is not authorized to use Complainant’s INTERMOUNTAIN HEALTHCARE mark. The WHOIS information of record lists the registrant as “Jason Chynoweth.” Therefore, the Panel finds that Respondent is not commonly known by the <intermountainshealthcare.org> domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”).
Complainant also argues that Respondent is not using the <intermountainshealthcare.org> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent’s domain name resolves to an inactive parked page. Inactive use of a domain name that resolves to a parked page does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(b)(i) or (iii). See Coinbase, Inc. v. Anonymize, Inc., FA2108001958522 (Forum Sept. 7, 2021). (holding that a respondent’s passive holding of a domain name where the domain name resolves to a message that states “This page isn’t working” does not amount to a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(b)(i) and (iii).) Complainant demonstrates that the website at <intermountainshealthcare.org> displays a message inviting a user to build a website, and has no other substantive content on it. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant also argues Respondent does not have any rights or legitimate interests in the <intermountainshealthcare.org> domain name because Respondent typosquatted Complainant’s INTERMOUNTAIN HEALTHCARE mark. Typosquatting may be evidence that a respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). Complainant argues the <intermountainshealthcare.org> domain name is a typosquatted version of Complainant’s INTERMOUNTAIN HEALTHCARE mark because it inserts an extra letter “s” in between the terms “intermountain” and “healthcare.” Therefore, if the Panel agrees it may find that Respondent further lacks rights or legitimate interests in the <intermountainshealthcare.org> domain name under Policy ¶ 4(a)(ii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <intermountainshealthcare.org> domain name in bad faith because Respondent uses the domain name to pass off as Complainant in phishing emails. Using a domain name to pass off as a complainant and phish for users’ personal information via email evinces bad faith registration and use under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, 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). Complainant provides copies of emails sent using the disputed domain name showing that Respondent poses as Complainant’s representative and phishes for information regarding the prices of certain tech items. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent’s bad faith is also shown by typosquatting. Under Policy ¶ 4(a)(iii), a typosquatted or purposely misspelled domain name is itself evidence of bad faith registration and use. See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (Forum July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting. Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”). The Panel finds that Respondent’s <intermountainshealthcare.org> domain name adds the letter “s” to Complainant’s fully incorporated mark, showing bad faith under Policy ¶ 4(a)(iii).
Complainant contends that Respondent registered the disputed domain name with knowledge of Complainant’s rights in the INTERMOUNTAIN HEALTHCARE mark. The Panel agrees, noting that Respondent uses the disputed domain name to pass off as a representative of Complainant and finds further bad faith under Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”).
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 <intermountainshealthcare.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 25, 2021
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