Iowa Health System d/b/a UnityPoint Health v. Bale Gary
Claim Number: FA2204001994122
Complainant is Iowa Health System d/b/a UnityPoint Health (“Complainant”), represented by Justin B. Perri of Blackstone Law Group LLP, New York, USA. Respondent is Bale Gary (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unitypoints.org>, registered with Cronon GmbH.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 27, 2022; the Forum received payment on April 27, 2022.
On April 29, 2022, Cronon GmbH; confirmed by e-mail to the Forum that the <unitypoints.org> domain name is registered with Cronon GmbH; and that Respondent is the current registrant of the name. Cronon GmbH; has verified that Respondent is bound by the Cronon GmbH; 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 May 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 23, 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@unitypoints.org. Also on May 2, 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 May 31, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it operates a non-profit health system. In 1993, the Iowa Methodist Medical Center, Blank Children’s Hospital and Iowa Lutheran Hospital merged to form Complainant. Complainant began doing business as UnityPoint Health in April 2013. This name change was a part of a transformation that began several years earlier when management and the Board of Directors approved a vision statement of “best outcome every patient every time.” This vision re-focused Complainant to enable it to provide higher value and high reliability services at lower cost to its markets. Today, Complainant is the nation’s 13th largest non-profit health system and the fourth largest nondenominational health system in America, providing care to both metropolitan and rural communities across Iowa, western Illinois and southern Wisconsin. Through relationships with more than 315 physician clinics, 21 regional and 19 community network hospitals and home care services throughout its 9 regions, Complainant is one of the nation's most integrated health systems. Headquartered in West Des Moines, Iowa, Complainant’s entities employ more than 30,000 employees who are dedicated to making it easier for people to live well. Complainant’s total revenue is approximately $4.1 billion. Complainant has rights in the UNITYPOINT mark based upon its registration in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its UNITYPOINT mark because it incorporates the entire mark and merely adds the letter “s” and the “.org” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s UNITYPOINT mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the disputed domain to pass its self off as affiliated with Complainant in furtherance of a fraudulent spear phishing scheme: Respondent submitted a change to Complainant’s Medicare provider contact information and bank account, using the disputed domain name in an e-mail account for verification purposes. This is similar to the Business E-mail Compromise scam, utilizing the e-mail in furtherance of the enrolment scam; Business E-mail Compromise scams that seek payment for a non-existent transaction are malicious activities related to spear phishing, which constitutes bad faith under the Policy. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to pass its self off as affiliated with Complainant in order to perpetuate a fraudulent phishing scheme. In addition, Respondent engages in typosquatting, used a privacy service to register the domain, and had actual knowledge of Complainant’s rights in the UNITYPOINT mark prior to registering the name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark UNITYPOINT and uses it to operate a non-profit health system.
Complainant’s rights in its mark date back to 2014.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name redirects to Complainant’s legitimate website and is used in furtherance of a fraudulent phishing scheme.
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 disputed domain name incorporates Complainant’s UNITYPOINT mark in its entirety and merely adds the letter “s” and the “.org” gTLD. Such changes are not sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s 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). Therefore the Panel find that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: 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 Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). Here the WHOIS information of record lists the registrant as “Bale Gary”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website. Using a confusingly similar domain name to redirect to a complainant’s own website may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Forum Feb. 6, 2003) (finding no rights or legitimate interests where the respondent merely redirected the <wwwmedline.com> domain name to the complainant’s own website at <medline.com>). Therefore, the Panel finds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii).
Further, Respondent uses the disputed domain name to pass off as Complainant in furtherance of a fraudulent phishing scheme. Specifically, Complainant provides evidence showing that Respondent submitted a change to Complainant’s Medicare provider contact information and bank account, using the disputed domain name in an e-mail account for verification purposes. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the respondent uses the domain name to pass its self off as affiliated with the complainant in furtherance of a phishing scheme. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Therefore the Panel finds, on this ground also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass itself off as affiliated with Complainant in order in furtherance of a fraudulent phishing scheme. Such use is evidence of bad faith under Policy ¶¶ 4(b)(iii) and/or (iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Swatch Group AG v. Van Cole, FA1901001827758 (Forum Feb. 25, 2019) (finding that using a mark to impersonate a complainant in connection with a fraudulent phishing scheme is indicative of bad faith registration and use); see also Agilent Technologies, Inc. v. Vincent Muscat, FA1806001791505 (Forum July 15, 2018) (use of the “domain name to pass off via a phishing email scheme is evidence of bad faith”). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith under policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent engaged in typosquatting by merely adding the letter “s” at the end of Complainant’s mark to form the disputed domain name. Typosquatting, or capitalizing on slight misspellings between the disputed domain name and a mark or a Complainant’s actual domain name, may be evidence of bad faith under Policy ¶ 4(a)(iii) See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (Forum July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting. Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith per Policy ¶ 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the disputed domain name redirects to Complainant’s legitimate website and Respondent submitted a change to Complainant’s Medicare provider contact information and bank account, using the disputed domain name in an e-mail account for verification purposes. It is well known that Complainant does business under its UNITYPOINT mark, thus Complainant’s mark was used deliberately in the disputed domain name. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <unitypoints.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 31, 2022
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