Independence Blue Cross, LLC v. yangzhichao
Claim Number: FA1506001625854
Complainant is Independence Blue Cross, LLC ("Complainant"), represented by Dana S. Gross of Morgan, Lewis & Bockius LLP, Washington, D.C., USA. Respondent is yangzhichao ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ameriheathcaritas.com>, registered with Hangzhou AiMing Network Co., 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 23, 2015; the Forum received payment on June 24, 2015. The Complaint was received in both Chinese and English.
On June 25, 2015, Hangzhou AiMing Network Co., LTD confirmed by email to the Forum that the <ameriheathcaritas.com> domain name is registered with Hangzhou AiMing Network Co., LTD and that Respondent is the current registrant of the name. Hangzhou AiMing Network Co., LTD has verified that Respondent is bound by the Hangzhou AiMing Network Co., LTD 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 1, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 21, 2015 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@ameriheathcaritas.com. Also on July 1, 2015, the Chinese language 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 July 28, 2015, 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 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
Complainant is a health care organization that has offered services for individuals and employers under the AMERIHEALTH trademark continuously since at least as early as 1995. Complainant describes its AmeriHealth Caritas company as "the nation's leader in health care solutions for the underserved and chronically ill," providing services to more than 6 million members in the United States. Complainant holds U.S. trademark registrations for AMERIHEALTH and AMERIHEALTH CARITAS. The registration for AMERIHEALTH CARITAS issued in August 2014 and reflects a first use date of May 2013.
Complainant contends that the disputed domain name <ameriheathcaritas.com>, registered in November 2014, is confusingly similar to its AMERIHEALTH CARITAS mark; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name, and that neither Complainant nor its affiliates have licensed or otherwise granted permission to Respondent to use Complainant's marks. Complainant characterizes the domain name registration as an example of typosquatting, and states that hackers in China have used similar domain names to illegally access and steal personal information from other health care companies; Complainant states that this gives it "reason to believe that the Respondent may have registered the AMERIHEATHCARITAS.COM domain name in connection with an attempt to unlawfully obtain the personal information of AmeriHealth Caritas' customers." Complainant states that until recently, the disputed domain name was pointed to a placeholder website that referenced Complainant's AMERIHEALTH trademark and contained English-language pay-per-click links to third-party websites, some of which purported to relate to employment activities with Complainant or its competitors. The website was disabled after Complainant sent a cease-and-desist letter to Respondent's Internet service provider.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar 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 and has been 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 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 notes that the Registration Agreement is written in Chinese, thereby making that the language of the proceedings. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, concludes that the remainder of the proceedings may be conducted in English. See, e.g., Bloomberg Finance L.P. v. Guo Mian, FA 1619037 (Forum June 12, 2015); Gianvito Rossi SRL Unipersonale v. Rossi Gianvito / Gianvito Rossi, FA 1601449 (Nat. Arb. Forum Mar. 4, 2015); The One Group LLC v. She Deli, FA 1557538 (Nat. Arb. Forum June 11, 2014).
The disputed domain name <ameriheathcaritas.com> is identical to Complainant's registered trademark AMERIHEALTH CARITAS, but for the omission of a space and a single letter "L", and the addition of the ".com" top-level domain. These changes are insufficient to distinguish the domain name from Complainant's mark. See, e.g., Assurant, Inc. v. Edward James, FA 1460027 (Nat. Arb. Forum Oct. 2, 2012) (finding <assurantheath.com> confusingly similar to ASSURANT HEALTH); Vision-Sciences Inc. v. Private Registrations Aktien Gesellschaft, FA 1297252 (Nat. Arb. Forum Jan. 20, 2010) (finding <endosheath.com> confusingly similar to ENDOSHEALTH); Medco Health Solutions, Inc. v. LaPorte Holdings, Inc., D2004-0800 (WIPO Dec. 22, 2004) (finding <medcoheath.com> confusingly similar to MEDCOHEALTH.COM). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
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 Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates a typographical variation of Complainant's registered mark, and its only apparent use has been for a website comprised of pay-per-click links, including links to sites purporting to relate to Complainant and its competitors. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Bank of the Sierra v. Laksh Internet Solutions Private Ltd., FA 1589763 (Nat. Arb. Forum Dec. 17, 2014); Assurant, Inc., supra. 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 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 has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, 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." The instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. See, e.g., Robert Half Int'l Inc. v. Mark Schacht, FA 1622554 (Forum July 8, 2015).
Respondent's registration of a domain name that is identical to Complainant's mark but for an apparently intentional typographical error, together with the use of that domain name to link to sites that purport to relate to Complainant and its competitors, is indicative of bad faith under the Policy. See, e.g., Bank of the Sierra v. Laksh Internet Solutions Private Ltd., FA 1589763 (Nat. Arb. Forum Dec. 17, 2014); Assurant, Inc., supra; Capital One Financial Corp., supra. The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ameriheathcaritas.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 31, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page