Altru Health System v.
Altruism Network c/o Doug West
Claim Number: FA0805001195584
PARTIES
Complainant is Altru Health System (“Complainant”), represented by Scott
Jensen, of Camrud Maddock Olson & Larson,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altru.net>, registered with Enom, Inc.
PANEL
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.
P-E H Petter Rindforth as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on May 28, 2008; the
National Arbitration Forum received a hard copy of the Complaint on May 29, 2008.
On May 29, 2008, Enom, Inc. confirmed by e-mail to the National
Arbitration Forum that the <altru.net> domain name is registered
with Enom, Inc. and that the Respondent
is the current registrant of the name. Enom, Inc. has verified that Respondent is
bound by the Enom, Inc. registration
agreement and has thereby agreed to resolve domain-name disputes brought by
third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution
Policy (the “Policy”).
On June 9,
A timely Response was received and determined to be complete on June 26, 2008.
On July 2, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed P-E H
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant is a provider
of healthcare services, and was incorporated in January 1970 under the name of
“
The Complainant is the
owner of the Service Mark ALTRU HEALTH SYSTEM in the
The Complainant maintains a
web site on the Internet at the <altru.org>
address. The domain name was registered on February 20, 1997. At its web site, Complainant advertises its services, provides medical
information for its patients, and provides information
relative to physicians and medical care offered by its facilities. The
Complainant states that it has spent great
amounts of money and effort developing and maintaining its web site
and concludes that as a result, Complainant is well known within the State of
Complainant further states that the Respondent
is not a licensee of Complainant, nor is Respondent otherwise authorized to use
Complainant's ALTRU mark for any purposes. Complainant argues that Respondent has no legitimate rights in the ALTRU mark, that it
is not Respondent's business name, a
trademark of Respondent, nor is Respondent using the ALTRU mark as part of the <altru.net>
domain name or otherwise for any legitimate non-commercial or
fair use purposes. A review of Respondent's
web site shows it is labelled "Altruism Network." Altruism has a
common usage definition meaning selflessness or the belief in acting for the benefit
of others is right and good. Altru, on the other hand, does not have a common
definition.
The Respondent is a resident of the City of
The Respondent registered
the disputed domain name on May 23, 2002 and has since then used it for a web
site posting various correspondence, e-mails,
memoranda, photographs, videos, and other information relating to Complainant
on his web site.
Complainant has an internal
networking system known as Altrunet. Complainant's employees have access to this system, which provides them with internal
information relative to their employment. Many of the correspondence and e-mails posted on Respondent’s web site are directed toward employees of Complainant using the address <altru.net>
by mistake. The Respondent post these e-mails on
his web site, even though they may contain confidential information (Annex J of
the complaint is a copy of Respondent’s web site of May 12, 2008, with samples
of the said e-mails). In the past, the Respondent has also posted graphic photographs and videotapes
of autopsies and information depicting
Complainant in a negative manner.
The Complainant has asked
Respondent not to use the disputed domain name because of the confusion it has and will continue to cause for Complainant's past, current and future employees, as well as for the public in
general, however Respondent has refused to refrain from doing so. The
Complainant claims to have been damaged and that its business has been
disrupted by Respondent’s actions. Complainant states that if Respondent is
permitted to keep the disputed domain name, the injury to complainant will be irreparable because of the potential for
confidential patient information to be made public on the Internet.
The Complainant argues that the disputed domain
name is confusingly similar to the Complainant’s ALTRU service mark, even
though the latter includes the words health
and service, which relates to the area of business of the Complainant.
The Respondent is not making a legitimate non-commercial or fair use of the domain name. In fact, it appears Respondent's usage of the
domain name is to tarnish the service mark at issue by posting
confidential e-mails and correspondence relating to Complainant and its
employees and staff.
Even if Respondent claims
his web site is being used for consumers to express their
opinions about Complainant and its business, Respondent has still not shown a
legitimate interest or right to use the domain name because the use of the name
is so confusingly similar to Complainant's
business, that consumers are sending e-mails to and going to the website with the belief that they are going to Complainant's web site.
The Complainant asserts
that the Respondent has registered <altru.net>
in bad faith and for purposes of disrupting the business
of Complainant, intentionally confusing the public
as to Complainant's web site, and for purposes of harassment of Complainant. In
addition, Respondent has banner and
other advertisements on his web site for which he is receiving commercial gain.
B. Respondent
The Respondent points to the fact that he is the original holder of the
disputed domain name and that it has been used for more than six years.
Respondent claims that the said use is “with clear and good intentions for
crime solving” under the title Altruism Network.
Respondent denies Complainant’s trademark rights to ALTRU, as the full
and correct registered trademark is ALTRU HEALTH SYSTEM, the same as
Complainant’s business name. Respondent further argues that the Complainant is
using the domain name <altruhealthsystem.org> as its main web address
since September 28, 2000, and is only using <altru.org> for contact
information.
The Respondent makes a reference to the domain name <altru.com>,
registered since June 14, 1998 and used by an insurance company with a service
mark for ALTRU, who has not demanded any transfer of
the disputed domain name.
The Respondent explains that “Altru” is a generic phrase derived from the Italian adjective “Altrui”, and claims to be known as <altru.net>.
The Respondent accuses the Complainant of having filed the Complaint in
bad faith with intent to harass and obtain Respondent’s domain name for
internal networking purposes - <altru.net> being much shorter than the alternative
<altruhealthsystem.net>. Complainant has recently
expressed a desire to purchase the disputed domain name from the Respondent,
but the Respondent refused the offer.
Respondent refers to the circumstances of the death of his daughter, as a
background to the photos and texts from Respondent’s web site, annexed to the
Complaint. Respondent denies having posted videotapes of autopsies, depicting
the Complainant in a negative manner, on his web site. The only autopsy photos
have been those of Respondent’s daughter, none of those taken or handled by
Complainant’s facility.
The Respondent thereafter refers to the Complainant’s information
regarding its internal networking system (Altrunet) and Annex I of the
Complaint showing a copy of one page of Altrunet, pointing out that Complainant
is using both <altru.org> and <altru.net> as connecting
domain names. Respondent concludes that the use of Respondents domain name is
intentionally and that therefore the e-mails were not sent to Respondent’s
address by mistake but rather as an attempt to harass.
Respondent denies having used the disputed domain name for commercial
gain, explaining that Complainant intentionally visited the Altruism
Network through a web site called Proxify,
an anonymous proxy service which to pay for its service, generates paid advertisements above any web page visited through its service (Annex J of the
Complaint).
The Respondent again
argues that his web site is dedicated to solve unsolved crimes,
that he previously had an e-mail address for the purpose of inviting
other to share stories but that it was removed because of spam-problems, and
provides the background of one other story presented at Respondent’s web site.
Finally, Respondent denies that Complainant has ever been mentioned on his web
site.
Reverse Domain Name Hijacking
Respondent demands a finding of
reverse domain name hijacking against Complainant.
FINDINGS
The Complainant is the owner of the following
U.S. Trademark Registration:
No. 2,400,395 ALTRU HEALTH SYSTEM
Filed on March 25, 1997 and Registered on
October 31,
The Respondent registered the disputed domain
name on May 23, 2002.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
The Complainant
is the holder of the registered trademark ALTRU HEALTH SYSTEM. In addition, it
seems that Complainant claims to be well known as ALTRU, at least within the
State of
The Complainant has provided no evidence that it has obtained unregistered trademark rights to the word ALTRU alone. Complainant’s web site shows a logo mark “ALTRU HEALTH SYSTEM Here For Life” and a headline “Welcome to Altru Health System.”
ALTRU is however the distinctive part of the registered trademark, which includes a disclaimer for the words “HEALTH SYSTEM.”
The relevant part of the disputed domain name is “altru.” See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
In comparing <altru.net> with ALTRU HEALTH SYSTEM, it is obvious that the domain name and the trademark are not identical. However, as the distinctive part of the trademark is identical to the domain name, the Panel concludes that the disputed domain name is confusingly similar to Complainant’s registered word mark. See Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the complainant’s ASPREY & GARRARD and MISS ASPREY marks).
Complainant has satisfied the
requirements of Policy ¶ 4(a)(i).
The Complainant states that Respondent has no rights or legitimate interests in respect of the domain name as: i) Complainant has no relationship with Respondent and has never authorized Respondent to use the domain name ALTRU, ii) Respondent is not commonly known by the domain name, iii) Respondent has not acquired a trademark for such domain name, iv) Respondent is not using the domain name in connection with a bona fide offering of goods or services, v) Respondent is not making a legitimate non-commercial or fair use of the domain name.
The Respondent claims that <altru.net> is used for the Altruism Network’s crime solving, with no connection
to, or mentioning of, the Complainant.
The Panel has no reason to question that Complainant has not authorized
Respondent to register and/or use the disputed domain name. As to the other
statements of the Complainant, there are certain aspects to consider:
Respondent states that he is commonly known by the domain name, after
more than six years of continuous use. Respondent offers no proof in support of
this statement. On the other hand, it appears not unlikely that Respondent or
rather, his web site with its controversial content,
has become locally known.
It is true that Respondent has not acquired a trademark registration
for ALTRU or <altru.net>. This
goes also for the Complainant. Although the disputed domain name is considered
confusingly similar to Complainant’s trademark, the said mark is in fact not ALTRU
but ALTRU HEALTH SYSTEM (even if the Complainant wrongly refers to its
registration as being “the ALTRU service mark”). There are other trademark registrations
including the word ALTRU, and even – as shown by the Respondent – companies
using ALTRU as a sole word for their services.
The Complainant contends that Respondent is using the disputed domain name in order to host a website on which he posts personal and private correspondence received by Respondent from Complainant’s employees as a result of the confusion caused by i) Respondent’s ownership of the <altru.net> domain name and ii) Complainant’s operation of an internal networking system under the name of “Altrunet.” In this respect, the Complainant refers to Annexes I (a copy of the Altrunet web site) and J (Respondent’s site with the e-mails). This Panel notes that Complainant – according to Annex I – is using Respondent’s domain name as an address to Altrunet (“Welcome to AltruNet – http://www.altru.net/”). The Panel also question Complainant’s statement that the e-mails are related to the Complainant and/or sensitive. As far as shown in Annex J, all e-mails are sent to @altru.net and including messages such as: i) practice for cheerleading, ii) a recipe for Carmel Rolls, iii) a discount coupon for shopping at bigfitness.com, iv) racist jokes, v) messages from the Wisconsin Department of Transportation, and a number of other, seemingly totally unconnected to the Complainant, as well as medical related general surveys and magazines. The Complainant does not inform from which date the Altrunet was created, and it seems that the confusion created is rather on the side of the Complainant.
Complainant also states that
Respondent is using the disputed domain name to post derogatory information
about Complainant, as well as disturbing images and videos, including images of
autopsies. The Complainant has not provided any evidence of such derogatory
information. In Annex K of the Complaint, Respondent accuses a number of
institutions and persons for wrongdoings in connection with the death of
Respondent’s daughter, but the Complainant is only mentioned a few times in
some official documents as “the hospital” or “
Respondent contends that the <altru.net> domain name is comprised of the term “altru” which “is a generic phrase derived from the Italian adjective Altrui.” Although the Panel finds that explanation somewhat far-fetched, it is a fact that the site has been used for more than six years for “the Altruism Network” and that its content is not obviously directed to or against the Complainant. See Energy Source Inc. v. Your Energy Source, FA 96364 (Nat. Arb. Forum Feb. 19, 2001) (finding that the respondent has rights and legitimate interests in the domain name where “Respondent has persuasively shown that the domain name is comprised of generic and/or descriptive terms, and, in any event, is not exclusively associated with Complainant’s business”).
In summary, the Panel finds that Complainant has failed to allege facts sufficient to create a prima facie case for lack of rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Lush LTD v. Lush Environs, FA 96217 (Nat. Arb. Forum Jan. 13, 2001) (finding that even when the respondent does file a response, the complainant must allege facts, which if true, would establish that the respondent does not have any rights or legitimate interests in the disputed domain name).
Accordingly, the Panel finds it likely that Respondent has used <altru.net> in connection with a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Complainant contends that Respondent had actual knowledge of Complainant and Complainant’s ALTRU HEALTH SYSTEM mark when he registered the <altru.net> domain name. The circumstances of the case support this allegation. This alone does however not constitute bad faith registration. There are a number of facts contradicting Complainant’s statement of registration and use in bad faith.
There is nothing
misleading about the source or sponsorship of Respondent's website as it is not
designed in a way to confuse consumers into believing it is the official
website of the Complainant. As concluded above, the confusion leading to the
e-mails sent to Respondent seems to have been created by the actions of the
Complainant rather than by the Respondent.
Also, the concept of "misleadingly diverting
consumers" refers to the kind of confusion that arises in a trademark
infringement context when a competitor diverts consumers to its site and,
potentially, diverts sales. A "competitor" in this context (and also
for purposes of paragraph 4(b)(iii) of the
Policy), is a person or entity in competition with the Complainant for the
provision of goods or services, and not merely any person or entity with an
interest oppositional to that of a mark holder. See Vishwa Nirmala Dharma v. Sahaja Yoga Ex-Members Network &
SD Montford, D2001-0467 (WIPO June 16, 2001)
("declin[ing] to accept the contention of the Complainant that the broad
definition of `competitor' will include not only commercial or business
competitors, but anyone acting in opposition to another").
Complainant asserts that Respondent is using the <altru.net> domain name to commercially benefit through advertisements displayed on the resulting website by creating a likelihood of confusion as to Complainant’s association with the disputed domain name and resulting website. As shown by the Respondent, the evidence of such commercial activities (Annex J of the Complaint) is created by connecting to Respondent’s web site via the Proxify Anonymous service. As this method is not used by the Complainant in showing Complainant’s web site (Annex G of the Complaint), the Panel concludes that it is a deliberate attempt to falsely create evidence of Respondent’s commercial activities.
The Respondent has used the disputed domain name continuously since May 23, 2002. The content of the web site is poor in respect of Respondent’s alleged crime solving network. As of today, only two cases are mentioned, one of them being the story of Respondent’s daughter. Respondent has also posted a number of e-mails, obviously not related to crime solving, but also mostly not obviously related to the Complainant. This is not enough evidence to claim that the domain name is used in bad faith.
The Panel finds that the Complainant has failed to meet its burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)).
The Respondent suggests
that the Complainant is guilty of Reverse Domain Name Hijacking. Reverse Domain Name Hijacking is defined in
paragraph 15 (e) of the Rules as filing the complaint in bad faith, for example
in an attempt to harass the domain-name holder or to deprive a registered domain-name holder of a domain name.
At first
sight, it may seen as the Complainant had fair reasons to file the Complaint,
should it had better trademark protection for ALTRU word alone and should the
Respondent clearly had created the confusion with e-mails and also used its
site for commercial banners.
Instead, the
Complainant has falsely referred to its trademark registration as being for the
ALTRU word alone instead of ALTRU HEALTH SYSTEM. Complainant has also used
Respondent’s domain name as a reference to its Altrunet, therewith creating at
least part of the confusion Complainant accuses Respondent for.
Lastly,
Complainant has made deliberately false accusations of Respondent’s commercial
activities at the <altru.net>
web site.
The Panel concludes that
Complainant’s actions were made in an attempt to convince the Panel to decide
in Complainant’s favour in spite the fact that the case had obvious flaws. It
is this Panels opinion that Complainant’s behaviour constitutes an abuse of the
administrative proceeding.
DECISION
For all the foregoing reasons, the Complaint is denied
and the Panel issues a finding that the Complainant has engaged in Reverse
Domain Name Hijacking.
P-E H Petter Rindforth, Panelist
Dated: July 15, 2008
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