Conifer Health Solutions, LLC v. Megan Cioni
Claim Number: FA2203001988381
Complainant is Conifer Health Solutions, LLC (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Megan Cioni (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coniferhealth.careers>, registered with Namecheap, Inc..
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 15, 2022; the Forum received payment on March 15, 2022.
On March 16, 2022, Namecheap, Inc. confirmed by e-mail to the Forum that the <coniferhealth.careers> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. Namecheap, Inc. has verified that Respondent is bound by the Namecheap, 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 March 22, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 2022 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@coniferhealth.careers. Also on March 22, 2022, 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 April 11, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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
Complainant is a health services technology company. Complainant has rights in the CONIFER HEALTH SOLUTIONS mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. 3,812,207, registered Jun. 29, 2010). Respondent’s <coniferhealth.careers> domain name is identical or confusingly similar to the mark as it incorporates an abbreviated version of the mark and adds the “.careers” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <coniferhealth.careers> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its CONIFER HEALTH SOLUTIONS mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers parked, pay-per-click links on the disputed domain name’s resolving website and passes off as Complainant in emails.
Respondent registered and uses the <coniferhealth.careers> domain name in bad faith. Respondent attracts internet users for commercial gain to the disputed domain name’s resolving website, where it hosts parked, pay-per-click links. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CONIFER HEALTH SOLUTIONS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <coniferhealth.careers> domain name.
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 CONIFER HEALTH SOLUTIONS mark through its registrations with the USPTO (e.g. Reg. 3,812,207, registered Jun. 29, 2010). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under 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)). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <coniferhealth.careers> domain name is identical or confusingly similar to Complainant’s CONIFER HEALTH SOLUTIONS mark. Under Policy ¶ 4(a)(i), incorporating an abbreviated version of a mark and a gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Sainato's Restaurant and Catering Limited v. chen xue ming, FA 1781748 (Forum June 4, 2018) (finding the <sainatos.com> domain name is confusingly similar to the SAINATO’S RESTAURANT mark as it “appends the gTLD “.com” to an abbreviated version of the mark.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The disputed domain name incorporates the words CONIFER HEALTH from the CONIFER HEALTH SOLUTIONS mark and adds the “.career” gTLD. The Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent is not commonly known by the <coniferhealth.careers> domain name, nor has Complainant authorized or licensed Respondent to use its CONIFER HEALTH SOLUTIONS mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS Information is generally sufficient in demonstrating that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS of record identifies Respondent as “Megan Cioni”, and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its CONIFER HEALTH SOLUTIONS mark in the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the <coniferhealth.careers> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host parked, competing, pay-per-click links and phishing in emails from the domain name are generally not considered bona fide offerings of goods or services, nor a legitimate noncommercial or fair use. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business); see also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”). Complainant provides screenshots of the disputed domain name’s resolving website, which features no content but parked pay-per-click links for competing services, as well as email correspondence appearing to show Respondent passing itself off as Complainant. The Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <coniferhealth.careers> domain name for bad faith disruption for commercial gain. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to host parked, pay-per-click links and/or pass off as Complainant in emails is generally considered evidence of bad faith registration and use. See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Complainant’s screenshots of the disputed domain name’s resolving website feature no content but parked pay-per-click links for various competing services, along with the screenshots of emails from the disputed domain name. This is evidence that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent’s bad faith is further shown by its use of a WHOIS privacy service. Use of a privacy service to shield one’s identity on WHOIS may contribute to an independent finding of bad faith under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). Respondent’s information was initially hidden behind a WHOIS Privacy service. This is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered and uses the disputed domain names with bad faith actual knowledge of Complainant’s rights in the CONIFER HEALTH SOLUTIONS mark. Under Policy ¶ 4(a)(iii), actual knowledge generally demonstrates bad faith, and may be demonstrated through Respondent’s use of the domain name, as well as its incorporation of the Complainant’s mark into the domain name. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). The disputed domain name incorporates the CONIFER HEALTH SOLUTIONS mark in its entirety and features competing links on the website and attempts to pass off as Complainant in emails. The Panel finds that Respondent had actual knowledge of Complaint’s rights in the mark and registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <coniferhealth.careers> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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