Team Health, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2110001969545
Complainant is Team Health, LLC (“Complainant”), represented by Linda A. Friedman of Bradley Arant Boult Cummings LLP, Alabama, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pay-teamhealth.com>, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 18, 2021; the Forum received payment on October 18, 2021.
On October 19, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <pay-teamhealth.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@pay-teamhealth.com. Also on October 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 November 11, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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. Complainant, Team Health, LLC, provides hospital management, staffing, and medical billing services. Complainant has rights in the TEAM HEALTH mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 2,489,975, registered Sep. 18, 2001).
2. The <pay-teamhealth.com>[i] domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, eliminated the space between the mark, and added the descriptive word “pay,” a hyphen, and the “.com” generic top level domain (“gTLD”), none of which creates a sufficient distinction.
3. Respondent does not have rights or legitimate interests in the <pay-teamhealth.com> domain because Respondent is not commonly known by the domain name and is not authorized to use Complainant’s TEAM HEALTH mark.
4. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain resolves to a parked webpage.
5. Respondent has registered and uses the <pay-teamhealth.com> domain name in bad faith because Respondent uses the domain name to confuse and distract customers who attempt to find Complainant’s domain.
6. In addition, Respondent engages in typosquatting and has a history of UDRP cases where it was found to engage in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the TEAM HEALTH mark. Respondent’s domain name is confusingly similar to Complainant’s TEAM HEALTH mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <pay-teamhealth.com> domain name and that Respondent registered and uses the domain name 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 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 has rights in the TEAM HEALTH mark based on registration with the United States Patent and Trademark Office. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Here, Complainant provides evidence of its registration with the USPTO for the TEAM HEALTH mark (e.g., 2,489,975, registered Sep. 18, 2001). Therefore, the Complainant has rights in the TEAM HEALTH mark under Policy ¶ 4(a)(i).
The <pay-teamhealth.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, eliminated the space in the mark, and added a descriptive word, a hyphen, and the “.com” gTLD. Domain names which incorporate the entire mark of a complainant are considered confusingly similar, as deleting spaces and adding a gTLD creates no distinction between a complainant’s mark and a domain name under Policy ¶ 4(a)(i). See Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Further, adding a descriptive word and a hyphen does not create a sufficient distinction. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). Respondent has added the descriptive word “pay” and a hyphen. The addition of the word “pay” may only add to the confusing similarity as it references Complainant’s medical billing services. Lastly, the confusing similarity may further be heightened given the fact that the <pay-teamhealth.com> domain name is essentially identical to Complainant’s webpage <pay.teamhealth.com>, where it operates a bill payment portal. Therefore, the Panel holds that Respondent’s <pay-teamhealth.com> domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <pay-teamhealth.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.). The Panel holds that Complainant has made a prima facie case.
Complainant claims that Respondent does not have rights or legitimate interests in the <pay-teamhealth.com> domain name because Respondent is not commonly known by the domain name and is not associated with Complainant or authorized to use Complainant’s TEAM HEALTH mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the guardair.com domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by a 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, there is no evidence available in the WHOIS information to suggest that Respondent is known by <pay-teamhealth.com> and no information in the record suggests Complainant authorized Respondent to use the TEAM HEALTH mark. Rather, the WHOIS information lists the registrant of the domain as “Domains By Proxy, LLC.” Therefore, Respondent is not commonly known by the <pay-teamhealth.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <pay-teamhealth.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), neither a bona fide offering of goods or services, nor any legitimate noncommercial or fair use exists where domain name incorporating the mark of another resolves to a parked webpage. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Respondent doesn’t offer any goods or services of its own. Instead, the resolving webpage only hosts links which advertise goods and services both related and unrelated to Complainant. Therefore, the Panel holds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims Respondent has registered and uses the <pay-teamhealth.com> domain in bad faith because Respondent has a history of bad faith registrations and uses. A history of negative UDRP decisions can be evidence of a pattern of bad faith under Policy ¶ 4(b)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Here, Complainant has provided evidence that Respondent has a history of multiple UDRP decisions where Respondent was found to have registered and used a domain in bad faith. Therefore, the Panel finds bad faith per policy ¶ 4(b)(ii).
Secondly, Complainant argues that Respondent registered and uses the <pay-teamhealth.com> domain in bad faith because it registered a domain name which is essentially identical to Complainant’s domain name and mark, and uses that domain name to host parked, pay-per-click links. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Respondent’s <pay-teamhealth.com> domain name is not sufficiently distinct from Complainant’s TEAM HEALTH mark and is also essentially identical to Complainant’s webpage <pay.teamhealth.com>. The related/competing parked pay-per-click links on the domain name’s resolving website are further evidence that Respondent is attempting to lure confused consumers to its domain name. Therefore, the Panel holds that Respondent has registered and uses the <pay-teamhealth.com> domain in bad faith under Policy ¶ 4(b)(iv).
The Panel finds 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 <pay-teamhealth.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 30, 2021
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