Vitas Hospice Services, L.L.C. v. Victoria Miller / Vitas Healthcare
Claim Number: FA1707001741766
Complainant is Vitas Hospice Services, L.L.C. ("Complainant"), represented by Theodore R. Remaklus of Wood, Herron & Evans, LLP, Ohio, USA. Respondent is Victoria Miller / Vitas Healthcare ("Respondent"), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vitashealth.us>, registered with Google Inc.
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 July 27, 2017; the Forum received payment on July 27, 2017.
On July 27, 2017, Google Inc. confirmed by email to the Forum that the <vitashealth.us> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On July 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 21, 2017 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@vitashealth.us. Also on July 31, 2017, the 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 August 22, 2017, 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 usTLD 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 usTLD Policy, usTLD 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 the largest provider of hospice care and related services in the United States, with programs in 17 states and the District of Columbia, and annual revenues exceeding $1 billion. Complainant provides its services under the VITAS mark, and owns U.S. service mark registrations for the mark that reflect a first-use date of 1992.
Respondent registered the disputed domain name <vitashealth.us> in March 2017. The domain name does not resolve to a website. Complainant states that Respondent has not been granted permission to use Complainant's mark and has no connection with Complainant, and that although Respondent identifies her organization as "Vitas Healthcare" in the domain name registration record, there is no such entity registered with the Virginia Secretary of State (other than Complainant itself), and the address provided by Respondent is a residential address. Complainant alleges that Respondent is using the disputed domain name in connection with phishing emails seeking to obtain sensitive and confidential information from individuals.
On these grounds Complainant contends that the disputed domain name is confusingly similar to Complainant's VITAS mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 or is being 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 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 (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 disputed domain name <vitashealth.us> combines Complainant's registered VITAS mark with the generic term "health," which relates to Complainant's industry, and the ".us" top-level domain. These additions do not diminish the similarity between the domain name and Complainant's mark. See, e.g., DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding <davitahealth.us> confusingly similar to DAVITA). The Panel therefore considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent registered a domain name combining Complainant's mark with a generic term for its industry, and the only apparent use of the domain name has been in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., DaVita Inc. v. Cynthia Rochelo, supra; Hill-Rom Inc. v. Jyoti Bansal, FA 1724573 (Forum May 3, 2017).
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 any 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 or is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor."
Respondent registered a domain name that combines Complainant's mark with a generic term, doing so through a privacy registration service in an effort to conceal Respondent's identity, and is using the domain name to impersonate Complainant in connection with a fraudulent phishing scheme. Such conduct is indicative of bad faith under the Policy. See, e.g., DaVita Inc. v. Cynthia Rochelo, supra; Hill-Rom Inc. v. Jyoti Bansal, supra. The Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vitashealth.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 23, 2017
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