Iowa Health System d/b/a UnityPoint Health v. Xiao Xia Cao
Claim Number: FA2111001971511
Complainant is Iowa Health System d/b/a UnityPoint Health (“Complainant”), represented by Justin Perri of Blackstone Law Group LLP, New York, USA. Respondent is Xiao Xia Cao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unitypoint.top>, registered with Chengdu West Dimension Digital Technology Co., Ltd.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 1, 2021; the Forum received payment on November 1, 2021. The Complaint was received in English.
On November 9, 2021, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <unitypoint.top> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 November 10, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of November 30, 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@unitypoint.top. Also on November 10, 2021, the Chinese and English language 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 December 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case and the fact that Respondent has failed to object to the proceedings going forth in English, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Iowa Health System d/b/a UnityPoint Health, operates a network of hospitals, clinics and home care services in Iowa, Illinois and Wisconsin.
Complainant has rights in the UNITYPOINT mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <unitypoint.top> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the entire UNITYPOINT mark and merely adds the “.top” generic top level domain (“gTLD”) to form the domain name.
Respondent does not have rights or legitimate interests in the <unitypoint.top> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized Respondent to use the UNITYPOINT mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to redirect users to <mb.cn> — a domain auction website.
Respondent registered and uses the <unitypoint.top> domain name in bad faith. Respondent engages in a pattern of bad faith registration and use based on previous UDRP proceedings. Additionally, Respondent uses the at-issue domain name to redirect users to a domain auction website. Finally, Respondent had actual knowledge of Complainant’s rights in the UNITYPOINT mark based on Complainant’s notoriety in the healthcare industry.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the UNITYPOINT mark.
Complainant’s rights in the UNITYPOINT mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the <unitypoint.top> domain name to redirect internet users to a domain name auction 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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for its UNITYPOINT mark demonstrates Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Synovus Financial Corp. v. Elizabeth Fagin / Wells & Wadw, FA 1601001655021 (Forum Feb. 5, 2016) (finding that Complainant had demonstrated its rights in the SYNOVUS mark through its registration with the USPTO)
The at-issue domain name consists of Complainant’s UNITYPOINT trademark followed by the top level domain name, “.top.” The differences between the at-issue <unitypoint.top> domain name and Complainant’s UNITYPOINT trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <unitypoint.top> domain name is confusingly similar to Complainant’s UNITYPOINT trademark. See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”); see also Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark.
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <unitypoint.top> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “[p]anels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Xiao Xia Cao” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by <unitypoint.top> or by UNITYPOINT. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Additionally, Respondent uses the confusingly similar <unitypoint.top> domain name to redirect internet users to an unrelated third-party website which appears to be a domain auction website. Respondent’s use of <unitypoint.top> constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Forum June 12, 2003) (finding that the respondent’s use of the at-issue domain name to redirect internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Deutsche Lufthansa AG v. Jane Dew, FA 1775139 (Forum April 16, 2018) (“Use of a domain name containing the mark of another to redirect users to content wholly unrelated to a complainant does not represent a bona fide offer per Policy ¶ 4(c)(i) or a noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Respondent’s <unitypoint.top> domain name was registered and used in bad faith. As discussed below without limitation, circumstances are present which permit the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent has suffered prior adverse UDRP decisions including one concerning Complainant and its UNITYPOINT trademark. See Iowa Health System d/b/a UnityPoint Health v. Xiao Xia Cao / Liu Jia Min, FA2010001916413 (Forum Nov. 19, 2020). The rulings against Respondent indicate a pattern of bad faith domain name registration and use and thus suggest Respondent’s bad faith registration and use in the present case under Policy ¶ 4(b)(ii). See Greektown Casino, LLC v. Daniel Kirchhof c/o Unister GmbH, FA1308001513182 (Forum Sept. 17, 2013) (“The Panel finds that Respondent’s implication in a pattern of bad faith use and registration serves as evidence of Policy ¶ 4(b)(ii) bad faith use and registration in the instant proceeding as well.”).
Next and as mentioned above regarding rights and legitimate interests, the at-issue domain name redirects internet traffic to a website unrelated to Complainant. That website is concerned with auctioning domain names. Such use of the confusingly similar is disruptive of Complainant’s business and indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Kmart v. Khan, FA 127708 (Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
Finally, Respondent had actual knowledge of Complainant’s rights in the UNITYPOINT mark when it registered <unitypoint.top> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s UNITYPOINT trademark. Respondent’s registration and use of its confusingly similar <unitypoint.top> domain name with prior knowledge of Complainant’s rights therein further shows Respondent’s bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unitypoint.top> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 6, 2021
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