Team Health, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2110001969551
Complainant is Team Health, LLC (“Complainant”), represented by Linda A. Friedman of Bradley Arant Boult Cummings LLP, Alabama, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <payteamhealth.com>, registered with Media Elite Holdings Limited.
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 18, 2021; the Forum received payment on October 18, 2021.
On October 22, 2021, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <payteamhealth.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 25, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 15, 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@payteamhealth.com. Also on October 25, 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 19, 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, Team Health, LLC, is a U.S. physician practice. Complainant has rights in the TEAM HEALTH mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,489,975, registered Sept. 18, 2001). The disputed domain name is confusingly similar to Complainant’s mark since it incorporates Complainant’s mark in its entirety, adding only the generic and/or descriptive term “pay” and the “.com” generic top-level domain (“gTLD”).
ii) Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant licensed or authorized Respondent to use the TEAM HEALTH mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because the domain name resolves to a website that displays competing hyperlinks.
iii) Respondent registered and uses the disputed domain name in bad faith because Respondent has a pattern of bad faith registration and use of infringing domain names, as demonstrated by Respondent’s extensive history of negative UDRP decisions. Furthermore, the disputed domain name is intentionally identical to Complainant’s mark, so that it diverts Internet users away from Complainant’s bill payment website and to Respondent’s website, which contains hyperlinks. Respondent’s bad faith is also evidenced by Respondent’s use of typosquatting in misspelling Complainant’s domain name <pay.teamhealth.com>. Lastly, Respondent had constructive and/or actual knowledge of Complainant’s rights in the TEAM HEALTH mark.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on December 16, 2019.
2. Complainant has established rights in the TEAM HEALTH mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,489,975, registered Sept. 18, 2001).
3. The disputed domain name’s resolving website features hyperlinks advertising multiple third parties who are potentially Complainant’s competitors.
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 TEAM HEALTH mark through its registration with the USPTO (e.g., Reg. No. 2,489,975, registered Sep. 18, 2001). Registration of a mark with a national trademark agency is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Therefore, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name <payteamhealth.com> is confusingly similar to Complainant’s TEAM HEALTH mark because it incorporates Complainant’s mark in its entirety, adding only the generic and/or descriptive term “pay” and the gTLD “.com.” Adding a generic and/or descriptive term that alludes to the complainant’s business and a gTLD to the complainant’s mark does not negate confusing similarity. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Kohler Co. v. Curley, FA 890812 (Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see additionally State Farm Mutual Automobile Insurance Company v. Wis INC, FA2004001892393 (Forum May 14, 2020) (The disputed domain name <statefarmpay.com> is composed of Complainant’s STATE FARM registered service mark in its entirety, the word “pay” and the <.com> gTLD extension. [. . .] [T]he word “pay” in this context does not reduce the similarity of the disputed domain name and Complainant’s mark. The gTLD <.com> extension may be ignored. . .”). Complainant contends that the term “pay” describes the bill payment services available in connection with Complainant’s mark. Therefore, the Panel finds that 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 argues that Respondent does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name, nor has Complainant licensed or authorized Respondent to use the TEAM HEALTH mark. Under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a mark is further evidence that a respondent is not commonly known by the mark. 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). The WHOIS information identifies “Domain Administrator / Fundacion Privacy Services LTD” as the registrant of the domain name. Additionally, Complainant asserts that it has not licensed or authorized Respondent to use the TEAM HEALTH mark. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Furthermore, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use because the disputed domain name resolves to a website that displays competing hyperlinks, such as “Medical Bill Payment.” Use of the domain name to host competing and/or unrelated hyperlinks does not constitute bona fide offerings of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum Jan. 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also SimScale GmbH v. Oliver Sharp, FA1401001537384 (Forum Feb. 3, 2014) (holding that the respondent’s “use of the disputed domain name to promote links to unrelated third parties is not protected as 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).”); see additionally Team Health, LLC v. Super Privacy Service LTD c/o Dynadot, FA2001001878451(Forum Jan. 13, 2020) (finding the display of generic links such as “Employee Health Insurance” and “Employee Health Benefits” was not a bona fide offering of goods or services or a legitimate noncommercial or fair use under UDRP Policy ¶¶ 4(c)(i) or (iii)). Complainant provides screenshots of Respondent’s webpage captured on September 21, 2021 and October 14, 2021, which feature hyperlinks advertising multiple third parties for “Medical Bill Payment,” “Medical Billing,” “Pay Medical Bills,” and “Pay Teamhealth.” Thus, the Panel finds that Respondent is not using the disputed domain name 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 name.
Complainant argues that Respondent registered or uses the disputed domain name in bad faith because Respondent has a pattern of bad faith registration and use of infringing domain names, as demonstrated by Respondent’s extensive history of negative UDRP decisions. Past UDRP actions against a respondent which resulted in the transfer of the respondent’s registered domain names are evidence of bad faith under Policy ¶ 4(b)(ii). See Jeffrey Dean Lindsay v. Lisa Katz / Domain Protection LLC, FA 1787275 (Forum July 3, 2018) (“A reverse-WHOIS search for domain names registered to Lisa Katz (the person behind Respondent), reveals over 100 domains. “Of this list, 67 use the same email, support@domainp.net, as the Complainant.” A search at the ADR Forum, http://www.adrforum.com/SearchDecisions, for cases with “Lisa Katz” in the case title reveals 21 cases, 19 of which resulted in decisions to transfer (one was denied and one was withdrawn). Respondent has been involved in 28 WIPO cases. Respondent registered and used the disputed domain name in bad faith under Policy ¶4(b)(ii)”); see also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”); see additionally Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant contends that a search of Forum Domain Name Dispute Proceedings and Decisions shows that “Domain Administrator / Fundacion Privacy Services LTD” has been named as a respondent in 87 proceedings and was ordered to transfer the disputed domain name(s) in 85 of 87 proceedings. Among these proceedings are Target Brands, Inc. v. Domain Administrator / Fundacion Privacy Services LTD, FA1903001834194 (Forum Apr. 14, 2019) and Byrnes & Kiefer Co. v. Domain Administrator / Fundacion Privacy Services LTD, FA1812001821916 (Forum Jan. 23, 2019). Therefore, the Panel finds Respondent’s bad faith registration and use of the disputed domain name per Policy ¶ 4(b)(ii).
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because the disputed domain name is intentionally identical to Complainant’s mark, so as to divert Internet users away from Complainant’s bill payment website to Respondent’s website, which contains hyperlinks. Complainant alleges that the hyperlinks can cause Complainant’s customers to direct payment to an unauthorized third-party, including potentially Complainant’s competitors, or they can spread malware to Complainant’s customers. Hosting competing or unrelated hyperlinks for financial gains is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”); see also For Your Ease Only, Inc v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1791755 (Forum July 16, 2018) (“[T]he evidence shows that Respondent previously used the domain names to resolve to websites which hosted links to Complainant’s competitors; this demonstrates bad faith under Policy ¶¶ 4(b)(iii) and (iv).”); see additionally HEB Grocery Company, LP v. Nikolay Schastenko / SEO Ukraine, FA 1789019 (Forum July 3, 2018) (“Complainant provides screenshots of the domain name’s resolving website and claims, without contradiction that Respondent commercially benefits from an “Affiliate Program” in which users are redirected to job-oriented websites such as “Snagajob” and “Monster.” Therefore, Respondent’s use of the <hebcareers.net> domain name to attract users for commercial gain demonstrates bad faith per Policy ¶ 4(b)(iv).”). Here, Complainant provides sample screenshots of Respondent’s website, showing that Respondent hosts hyperlinks for “Medical Bill Payment,” “Medical Billing,” “Pay Medical Bills,” and “Pay Teamhealth.” The “Medical Bill Payment” link directs users to another webpage with additional hyperlinks. Therefore, the Panel finds Respondent’s bad faith registration and use of the disputed domain name under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <payteamhealth.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: November 22, 2021
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