MedicAlert Foundation United States, Inc. v. Milen Radumilo
Claim Number: FA2206002002114
Complainant is MedicAlert Foundation United States, Inc. ("Complainant"), represented by Mark A. Steiner of Duane Morris LLP, California, USA. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <medic-alert.us>, registered with CommuniGal Communication 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 27, 2022; the Forum received payment on June 27, 2022.
On July 6, 2022, CommuniGal Communication Ltd. confirmed by email to the Forum that the <medic-alert.us> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On July 6, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@medic-alert.us. Also on July 6, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 August 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 has used the MEDICALERT and MEDIC ALERT marks continuously since at least as early as 1956 in connection with jewelry containing personal or medical information, identification cards, information services, and related products and services. Complainant currently provides services to millions of members throughout the United States and worldwide affiliates. Complainant owns longstanding United States trademark registrations for MEDICALERT and MEDIC ALERT in standard character form and otherwise.
Respondent registered the disputed domain name <medic-alert.us> in July 2021. The domain name is being used for a parked page that displays what appear to be pay-per-click links to third party websites, including sites that promote patient monitoring systems, medical alert devices, or other products or services that relate to or compete with those offered by Complainant. Complainant states that Respondent is not commonly known by the domain name, has no connection or affiliation with Complainant, and is not licensed or otherwise authorized to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <medic-alert.us> is identical or confusingly similar to its MEDICALERT and MEDIC ALERT marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being used 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP principles as applicable in rendering its decision.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <medic-alert.us> corresponds to Complainant's registered MEDICALERT and MEDIC ALERT trademarks, inserting a hyphen in the former and substituting a hyphen for the space in the latter, and in both cases appending the ".us" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., MedicAlert Foundation United States, Inc. v. MelGerLLC MelGerLLC, FA 2001504 (Forum July 26, 2022) (finding <medicalert.net> confusingly similar to MEDICALERT and MEDIC ALERT); MedicAlert Foundation United States, Inc. v. Mr James Kirkby-Bott, FA 1991909 (Forum June 7, 2022) (finding <my-medic-alert.com> confusingly similar to MEDIC ALERT and MEDICALERT); HUGO BOSS Trademark Management GmbH & Co., KG & HUGO BOSS AG v. Luigii Cardinaee, FA 1733894 (Forum June 28, 2017) (finding <hugo-boss.us> identical or confusingly similar to HUGO BOSS). The Panel considers the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered marks without authorization, and its sole apparent use has been to display pay-per-click links to products or services that compete with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., MedicAlert Foundation United States, Inc. v. MelGerLLC MelGerLLC, supra (finding lack of rights or interests in similar circumstances); MedicAlert Foundation United States, Inc. v. Chuck Furi, FA 1996567 (Forum June 15, 2022) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to Complainant's well-known, long-established marks, and is using it to display pay-per-click links to competing products and services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., MedicAlert Foundation United States, Inc. v. MelGerLLC MelGerLLC, supra (finding bad faith in similar circumstances); MedicAlert Foundation United States, Inc. v. Chuck Furi, supra (same). Under the circumstances, and considering Respondent's failure to offer any alternative explanation or otherwise participate in this proceeding, the Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <medic-alert.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 1, 2022
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