Emissary Technologies, LLC v. Careright Healthcare, Inc.
Claim Number: FA1207001451502
Complainant is Emissary Technologies, LLC (“Complainant”), represented by Antoinette M. Tease of Antoinette M. Tease, P.L.L.C., Montana, USA. Respondent is Careright Healthcare, Inc. (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carerighthealthcare.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 2, 2012; the National Arbitration Forum received payment on July 2, 2012.
On July 3, 2012, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <carerighthealthcare.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 6, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2012 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@carerighthealthcare.com. Also on July 6, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 1, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <carerighthealthcare.com> domain name is confusingly similar to Complainant’s CARERIGHT mark.
2. Respondent does not have any rights or legitimate interests in the <carerighthealthcare.com> domain name.
3. Respondent registered and used the <carerighthealthcare.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the CARERIGHT mark, registered with the United States Patent and Trademark Office (“USPTO”) in connection with “computer software for maintaining and managing medical records for patients in long-term care facilities” (Reg. No. 4,084,279 filed April 9, 2009; registered January 10, 2012).
Respondent registered the <carerighthealthcare.com> domain name on November 30, 2010. Respondent uses the <carerighthealthcare.com> domain name to resolve to a website of a healthcare business. Prior to June 1, 2012, the domain name did not resolve to an active website.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant demonstrated its rights in the CARERIGHT mark under Policy ¶ 4(a)(i), dating back to the filing date of April 9, 2009, through its registration with the USPTO. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date).
Respondent’s <carerighthealthcare.com> domain name is virtually identical to Complainant’s CARERIGHT mark, as it simply adds the descriptive term “healthcare,” and the generic top-level domain (“gTLD”) “.com.” These changes do not distinguish the disputed domain name from Complainant’s mark. Therefore, the Panel finds that Respondent’s <carerighthealthcare.com> domain name is confusingly similar to Complainant’s CARERIGHT mark pursuant to Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent is not commonly known by the <carerighthealthcare.com> domain name. The WHOIS information identifies the registrant of the <carerighthealthcare.com> domain name as “Careright Healthcare, Inc.” Complainant claims that no such entity exists at the address found on the resolving website and in the WHOIS information. The Panel notes that Respondent did not respond to this case and, therefore, did not provide the Panel with any evidence supporting the WHOIS information. Therefore, the Panel finds that Respondent is not commonly known by the <carerighthealthcare.com> domain name, and was not so known prior to the domain name’s registration, for the purpose of Policy ¶ 4(c)(ii) despite the information listed in the WHOIS information. See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”).
Complainant alleges that Respondent uses the <carerighthealthcare.com> domain name to resolve to a website that appears to be the website of a legitimate healthcare business but is actually a “scam.” Complainant failed to provide any screenshots of the resolving website to corroborate Complainant’s allegations and did not explain further how the website works as a “scam.” Complainant only argues that Respondent may be using the resolving website as a cover for illegal activity. Complainant asserts that Julius Murizini, the administrative contact listed in the WHOIS information, was charged with identity theft and forgery of a document in connection with an unrelated elder care facility. In the absence of any contradiction to Complainant’s contentions, the Panel finds that Respondent is making not a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Nycomed Danmark ApS v. Diaz, D2006-0779 (WIPO Aug. 15, 2006) (concluding that the respondent’s use of a disputed domain name to operate a website promoting an illegal food supplement was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Additionally, Complainant asserts that Respondent’s <carerighthealthcare.com> domain name previously resolved to an inactive website that only became active on June 1, 2012. Respondent registered the disputed domain name on November 30, 2010. The Panel finds that Respondent’s previous failure to make an active use of the <carerighthealthcare.com> domain name for 19 months is additional evidence that Respondent lacks rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii). See Am. Online, Inc. v. Kloszewski, FA 204148 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent's [failure to make an active use] of the <aolfact.com> domain name for over six months is evidence that Respondent lacks rights and legitimate interests in the domain name.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel notes that the examples of bad faith registration and use prescribed in Policy ¶ 4(b) are intended to be illustrative and not exhaustive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith.) Thus, the Panel may find bad faith beyond the perimeters of Policy ¶ 4(b). See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”).
Complainant avers that, while the disputed domain name resolves to a website that appears to offer a legitimate healthcare business, Respondent is actually using the <carerighthealthcare.com> domain name for a “scam” and to cover up illegal activity. With no evidence to the contrary, the Panel finds that Respondent is using the disputed domain name for an illegal purpose, in bad faith according to Policy ¶ 4(a)(iii). See Minn. State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding bad faith because it would be illegal for the respondent to use the domain name <mnlottery.com> without government approval).
Respondent’s <carerighthealthcare.com> domain name previously resolved to an inactive website that only became active on June 1, 2012. In the absence of any explanation for Respondent’s failure to make an active use of the <carerighthealthcare.com> domain name for 19 months, the Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Nat. Arb. Forum Apr. 12, 2007) (holding that non-use of a confusingly similar domain name for over seven months constitutes bad faith registration and use).
The Panel finds that Complainant has satisfied 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 <carerighthealthcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 8, 2012
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