Availity, L.L.C. v. domain admin
Claim Number: FA2207002003528
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is domain admin (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myavaility.com>, registered with Key-Systems 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 8, 2022; the Forum received payment on July 8, 2022.
On July 12, 2022, Key-Systems GmbH confirmed by e-mail to the Forum that the <myavaility.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems 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 July 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@myavaility.com. Also on July 13, 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 August 4, 2022, 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 offers services related to healthcare communications media. Complainant has rights in the AVAILITY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered on December 24, 2002). The disputed domain name is identical or confusingly similar to Complainant’s AVAILITY mark as it incorporates the mark in its entirety while adding the descriptive term “my” 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 authorized or licensed Respondent to use its mark in the disputed domain name. Respondent is not using the disputed domain name for any bona fide offering of goods or services by offering click-through hyperlinks to competing websites.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to attract users for commercial gain by hosting competing hyperlinks. Additionally, Respondent used a privacy service to hide its identity. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AVAILITY mark.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on September 8, 2015.
2. Complainant has established rights in the AVAILITY mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered on December 24, 2002).
3. The disputed domain name’s resolving website displays links competing with Complainant’s business.
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 AVAILITY mark through its registration with the USPTO (e.g., Reg. No. 2,667,172, registered on December 24, 2002). Registration with the USPTO is generally sufficient in demonstrating rights in a mark under 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). Therefore, the Panel finds Complainant has rights in the AVAILITY mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name <myavaility.com> is identical or confusingly similar to Complainant’s AVAILITY mark. Under Policy ¶ 4(a)(i), adding a descriptive term and the “.com” gTLD is insufficient in differentiating from the mark. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> domain name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”). The disputed domain name incorporates the mark in its entirety while adding the descriptive term “my” and the “.com” gTLD. Therefore, the Panel finds 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 is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate 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 PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). The WHOIS information identifies Respondent as “domain admin”, however no other evidence rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its mark in the disputed domain name. Thus, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant contends that Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use by hosting click-through hyperlinks which compete with Complainant’s business. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to offer competing hyperlinks does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides screenshots of the disputed domain name’s resolving website, which offers hyperlinks to websites of other entities and competitors in the health insurance and related fields. Thus, the Panel finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (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 and uses the disputed domain name in bad faith by attracting users for commercial gain by hosting competing hyperlinks. Under Policy ¶ 4(b)(iv), hosting competing hyperlinks for commercial gain is evidence of bad faith registration and use. See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). The Panel references that the disputed domain name’s resolving website displays links competing with Complainant’s business. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(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 <myavaility.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: August 8, 2022
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