athenahealth, Inc. v. Anudeep Nalla / sumanth Reddy / Unisen nation / Suresh Prasad / ram pal / Ajay Kumar
Claim Number: FA2110001967355
Complainant is athenahealth, Inc. (“Complainant”), represented by Nancy Ly of Fish & Richardson P.C., Minnesota, USA. Respondent is Anudeep Nalla / sumanth Reddy / Unisen nation / Suresh Prasad / ram pal / Ajay Kumar (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <quickpayportalx.co>, <quickpayportal.pro>, <quickpay-portals.com>, <quickpay-portal.com>, <quick-payportal.com>, and <quickpayportal.me>, registered with Godaddy.Com, Llc.
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 October 1, 2021; the Forum received payment on October 1, 2021.
On October 4, 2021, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <quickpayportalx.co>, <quickpayportal.pro>, <quickpay-portals.com>, <quickpay-portal.com>, <quick-payportal.com>, and <quickpayportal.me> domain names are registered with Godaddy.Com, Llc and that Respondent is the current registrant of the names. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, 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 October 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@quickpayportalx.co, postmaster@quickpayportal.pro, postmaster@quickpay-portals.com, postmaster@quickpay-portal.com, postmaster@quick-payportal.com, postmaster@quickpayportal.me. Also on October 12, 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 November 8, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is 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 the disputed domain names are controlled by the same entity since the resolving websites are virtually identical; the domains are all registered with the same registrar; and the WHOIS information for all domains has an incomplete physical address in India. The Panel finds that all of the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases. All of the Respondents will be collectively referred to as ‘Respondent.’
A. Complainant
i) Complainant, athenahealth, Inc., provides healthcare software solutions. Complainant has common law rights in the QUICKPAY PORTAL mark based upon use of the mark in commerce. The disputed domain names are confusingly similar to Complainant’s mark as they are all typosquatted versions of the QUICKPAY PORTAL mark.
ii) Respondent does not have rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names and Complainant has not licensed or authorized Respondent to use the QUICKPAY PORTAL mark. Additionally, Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domains to pass off as Complainant.
iii) Respondent registered and uses the disputed domain names in bad faith. Respondent uses the domains to pass off as Complainant. Additionally, Respondent engages in typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the QUICKPAY PORTAL mark based on Respondent’s efforts to pass off as Complainant.
B. Respondent
Respondent did not submit a Response.
1. The disputed domain names were registered on the following dates: <quickpayportalx.co>, registered June 19, 2018; <quickpayportal.pro>, registered August 4, 2018; <quickpay-portals.com>, registered October 16, 2017; <quickpay-portal.com>, registered August 2, 2017; <quick-payportal.com>, registered March 17, 2020; <quickpayportal.me>, registered April 5, 2018.
2. Complainant has common law rights in the QUICKPAY PORTAL mark based upon use of the mark in commerce.
3. The resolving websites for the disputed domain names mimic Complainant’s own legitimate website.
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 QUICKPAY PORTAL mark based upon common law rights. Under Policy ¶ 4(a)(i), a complainant is not required to own a registered trademark prior to the registration of the disputed domain name if the complainant can establish common law rights in the mark. See Psyonix Inc. v. robert gray / notpsyonix, FA 1759780 (Forum Jan. 3, 2018) (“Policy ¶ 4(a)(i) does not require a complainant to own a trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”). Therefore, the Panel agrees that Complainant need not provide evidence of trademark registration to show rights in the QUICKPAY PORTAL mark.
Complainant claims common law rights in the QUICKPAY PORTAL mark based upon use of the mark in commerce for over six years. Common law rights in a mark may be established through evidence that the mark has acquired a secondary meaning. See Psyonix Inc. v. robert gray / notpsyonix, FA 1759780 (Forum Jan. 3, 2018) (finding Complainant had satisfied the requirements for common law rights in the PSYONIX mark where it was “the center of the press worldwide since the release of its Rocket League game, selling over 10 million copies, totaling 36 million registered users and grossing over $110 million worldwide,” and “Complainant provided a sampling of articles from 2015 to 2017, which shows that the PSYONIX trademarks have been extensively used by Complainant, [and] are associated with Complainant amongst the consuming public worldwide.”). Complainant asserts that it has used the QUICKPAY PORTAL mark for the past six years in connection to a platform for patients to pay bills. Complainant also registered the domain names <quickpayportal.com> and <quickpayportal.net> on November 21, 2013, and has used the domain names in connection with its portal services under the QUICKPAY PORTAL mark. Thus, the Panel finds that Complainant has sufficiently established common law rights in the QUICKPAY PORTAL mark.
Complainant argues that the disputed domain names <quickpayportalx.co>, <quickpayportal.pro>, <quickpay-portals.com>, <quickpay-portal.com>, <quick-payportal.com>, and <quickpayportal.me> are confusingly similar to Complainant’s mark as they are all typosquatted versions of the QUICKPAY PORTAL mark. The disputed domain names all add a hyphen and/or a letter, along with a generic top-level domain (“gTLD”). The addition of punctuation, letters, and a gTLD to a mark does not negate a finding of confusing similarity to a mark under Policy ¶ 4(a)(i). See Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark); see also Google, Inc. v. DktBot.org, FA 286993 (Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see additionally Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Thus, the Panel finds that the disputed domain names are confusingly similar to Complainant’s QUICKPAY PORTAL 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 argues that Respondent does not have rights or legitimate interests in the disputed domain names because Respondent is not commonly known by the disputed domain names and Complainant has not licensed or authorized Respondent to use the QUICKPAY PORTAL mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name 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). Additionally, lack of authorization to use a mark constitutes a further showing that a respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Here, the WHOIS information of record identifies “Anudeep Nalla / sumanth Reddy / Unisen nation / Suresh Prasad / ram pal / Ajay Kumar” as the registrant of the disputed domain names. See Registrar Verification Email. Additionally, Complainant asserts it has not authorized Respondent to use the QUICKPAY PORTAL mark in any capacity. Thus, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the disputed domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domains to pass off as Complainant. Using a disputed domain name to pass off as Complainant by mimicking a Complainant’s website does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”); see also iFinex Inc. v. Yuri Hefetz / Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking the complainant’s website in order to cause existing or potential customers to falsely believe they are setting up a new account with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). Complainant provides screenshots of the resolving websites for the disputed domain names which mimic Complainant’s own legitimate website. Therefore, the Panel finds that Respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(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 names.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith because Respondent uses the domains to pass off as Complainant. Under Policy ¶ 4(b)(iv), using a disputed domain name to pass off as a complainant indicates bad faith registration and use. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). The Panel recalls that Complainant provides screenshots showing Respondent uses the disputed domain names to mimic Complainant’s own website. Therefore, the Panel finds bad faith use per Policy ¶ 4(b)(iv).
Additionally, Complainant argues that Respondent engages in typosquatting. Typosquatting is itself evidence of bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Complainant asserts that the disputed domain names are all typosquatted versions of Complainant’s QUICKPAY PORTAL mark as Respondent merely misspells the mark by adding a hyphen and/or a letter and gTLD. Therefore, the Panel finds bad faith in the registration and use of the disputed domain names.
Finally, Complainant contends that Respondent had actual knowledge of Complainant’s rights in the QUICKPAY PORTAL mark based on Respondent’s efforts to pass off as Complainant per Policy ¶ 4(a)(iii). The Panel infers, due to the manner of use of the disputed domain names that Respondent had actual knowledge of Complainant’s rights in the QUICKPAY PORTAL mark at the time of registering the disputed domain names, and thus it finds Respondent’s bad faith registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <quickpayportalx.co>, <quickpayportal.pro>, <quickpay-portals.com>, <quickpay-portal.com>, <quick-payportal.com>, and <quickpayportal.me> domain names be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: November 12, 2021
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