HealthNow New York Inc. v. Direct Privacy ID 39C0D
Claim Number: FA1208001457462
Complainant is HealthNow New York Inc. (“Complainant”), represented by Patrick A. Quinlan, New York, USA. Respondent is Direct Privacy ID 39C0D (“Respondent”), Louisiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <accesshealthnow.com>, registered with DNC Holdings, Inc.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 9, 2012; the National Arbitration Forum received payment on August 9, 2012.
On August 9, 2012, DNC Holdings, Inc. confirmed by e-mail to the National Arbitration Forum that the <accesshealthnow.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, Inc. 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 August 14, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 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@accesshealthnow.com. Also on August 14, 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 September 10, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the HEALTH NOW mark (Reg. No. 2,457,947 registered June 5, 2001).
Complainant uses the HEALTH NOW mark in connection with the organization and administration of prepaid healthcare plans, healthcare insurance services, and healthcare claims processing services.
The <accesshealthnow.com> domain name is confusingly similar to Complainant’s HEALTH NOW mark.
Respondent is not commonly known by the <accesshealthnow.com> domain name.
The <accesshealthnow.com> domain name resolves to a website that offers for sale healthcare insurance, which directly competes with Complainant’s business.
Respondent’s registration and use of the <accesshealthnow.com> domain name disrupts Complainant’s business by selling competing healthcare insurance.
Respondent registered and uses the <accesshealthnow.com> domain name for Respondent’s own commercial gain, which demonstrates bad faith registration and use under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a trademark registration with the USPTO for HEALTH NOW.
Respondent is not affiliated with Complainant and had not been authorized to use the HEALTH NOW mark in any capacity.
Respondent registered the <accesshealthnow.com> domain name on May 29, 2004.
Respondent’s <accesshealthnow.com> website references a website which offers healthcare insurance for sale.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has established its rights in the HEALTH NOW mark under Policy ¶4(a)(i) by registering it with the USPTO. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also 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).
The at‑issue domain name combines the HEALTH NOW mark with the descriptive term “access” and the generic top-level domain (“gTLD”) “.com.” “Access” is a descriptive term because health insurance provides its insurer with “access” to health care. These alterations to Complainant’s mark are insufficient to differentiate the at-issue domain name from the HEALTH NOW mark. Therefore, Respondent’s <accesshealthnow.com> domain name is confusingly similar to Complainant’s HEALTH NOW mark for the purposes of Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark).
Respondent lacks either rights or legitimate interests in respect of the at‑issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and as discussed below there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in the at‑issue domain names.
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 the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Direct Privacy ID 39C0D” as the registrant of the disputed domain name. The registrant’s name is thus dissimilar to the domain name. Further, there is no evidence that Respondent is commonly known by the <accesshealthnow.com> domain name. Based on these circumstances the Panel concludes, according to Policy ¶ 4(c)(ii), that Respondent is not commonly known by the <accesshealthnow.com> domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Additionally, the <accesshealthnow.com> domain name references a website that offers healthcare insurance for sale. See www.accesshealthnow.com, (September 10, 2012). The website directly competes with Complainant’s business. Offering competing products or services at a website referenced by a confusingly similar domain name does not qualify as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Florists’ Transworld Delivery v. Malek, FA 676433 (Nat. Arb. Forum June 6, 2006) (holding that the respondent’s use of the <ftdflowers4less.com> domain name to sell flowers in competition with the complainant did not give rise to any legitimate interest in the domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. Two of the Policy 4(b) enumerated bad faith circumstances are present in the instant case.
First, as noted above, Respondent competes with Complainant by selling healthcare insurance at its <accesshealthnow.com> website. Respondent’s services are marketed by trading on Complainant’s HEALTHCARE NOW trademark since Internet users searching for Complainant may instead find Respondent at the confusingly named <accesshealthnow.com> website and purchase Respondent’s competing services. Respondent’s registration and use of a confusingly similar domain name to sell competing services disrupts Complainant’s business and constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Second, again as noted above, Respondent registered and uses the <accesshealthnow.com> domain name for Respondent’s own commercial gain; Respondent intends to profit from the sales of healthcare insurance through its <accesshealthnow.com> website. Additionally, there is a clear inference that Internet users will be confused by Respondent’s confusingly similar domain name into believing they are dealing with Complainant, or an agent of Complainant, when visiting Respondent’s website. Registering and then using the domain name in this manner indicates bad faith registration and use under Policy ¶ 4(b)(iv). See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <accesshealthnow.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 10, 2012
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