Availity, L.L.C. v. Jin Liang Li / Li Jin Liang
Claim Number: FA1809001806147
Complainant is Availity, L.L.C. (“Complainant”), Florida, USA. Respondent is Jin Liang Li / Li Jin Liang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <availuty.com> and <availitt.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 14, 2018; the Forum received payment on September 14, 2018.
On September 20, 2018 and September 27, 2018, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <availuty.com> and <availitt.com> domain names are registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the names. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology 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 September 28, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 2018 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@availuty.com, and postmaster@availitt.com. Also on September 28, 2018, 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 Forum transmitted to the parties a Notification of Respondent Default.
On October 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a health care information technology company that serves health plans, providers and technology partners through a suite of software products.
Complainant holds a registration for the AVAILITY service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,667,172, registered December 24, 2002, renewed as of February 22, 2012.
Respondent registered the domain names <availuty.com> and <availitt.com> on July 22, 2018, and August 22, 2018, respectively.
The domain names are confusingly similar to Complainant’s AVAILITY mark.
Respondent has not been commonly known by the domain names.
Complainant has not licensed or otherwise authorized Respondent to use the AVAILITY mark for any purpose.
Respondent does not use the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, the domain names, presumably for Respondent’s commercial gain, resolve to various websites that host sponsored links to the websites of Complainant’s commercial competitors.
Respondent has no rights to or legitimate interests in either of the domain names.
Respondent has been a party respondent in at least three UDRP decisions ordering the transfer of domain names upon findings of its bad faith in their registration and use.
Respondent’s use of the domain names disrupts Complainant’s business.
Each of the domain names is an instance typo-squatting.
Respondent knew of Complainant’s rights in the AVAILITY mark when it registered the domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the same domain names were registered and are being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Preliminary Issue: Language of the Proceeding
The Registration Agreement governing the challenged domain names is written in the Chinese language, thereby making that language the presumptive language of this proceeding. See Rule 11 of the Rules for Uniform Domain Name Dispute Resolution Policy. However, the same Rule grants to this Panel discretion to adopt a different language for this proceeding in light of prevailing circumstances.
In its Complaint, Complainant argues that this proceeding should be conducted in English because both of the disputed domain names resolve to websites that are hosted in English and contain fully English language content. Complainant further contends that both the privacy policies and related sponsored links hosted on the <availuty.com> and <availitt.com> websites are presented in English.
Inasmuch as Respondent does not contest these assertions, we conclude that it would be economical and efficient and in the interests of justice that this case should proceed in English, and, accordingly, we so direct. See, for example, FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct a UDRP proceeding in English under Rule 11, despite the fact that Korean was the designated language in the pertinent registration agreement because the respondent there submitted a response in English after receiving a complaint in Korean and English).
Complainant has rights in the AVAILITY service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i).... Due to Complainant’s … USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <availuty.com> and <availitt.com> domain names are confusingly similar to Complainant’s AVAILITY service mark. Each of the domain names contains the mark in its entirety, with the exception of the replacement of a single letter by one close to it on the standard “qwerty” keyboard, plus the addition of the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy.
See Chegg Inc. v. Company CEO / Qulity Programming, FA 1610061 (Forum Apr. 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) where a respondent’s <chwgg.com> domain name was a simple misspelling of a complainant’s CHEGG.COM mark). See also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016):
A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs [for all domain names].
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <availuty.com> and <availitt.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <availuty.com> and <availitt.com> domain names, and that Complainant has not licensed or otherwise authorized Respondent to use the AVAILITY mark for any purpose. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Jin Lian Li / Li Jin Liang,” which does not resemble the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that the <availuty.com> and <availitt.com> domain names resolve to various websites hosting sponsored links to the websites of Complainant’s commercial competitors. This use is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(b)(i) nor a legitimate non-commercial or fair use of them under Policy ¶ 4(a)(iii) such as would confirm in Respondent rights to or legitimate interests in them as provided in those subsections of the Policy. See, for example, Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that a respondent failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name where the domain name resolved to a website that offered hyperlinks to the websites of a UDRP complainant’s commercial competitors).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence of record that Respondent has demonstrated a pattern of registration and use of domain names in bad faith, as shown in UDRP decisions so finding. See Kinon Surface Design, Inc. v. yinsi baohu yi kai qi (Hidden by Whois Privacy Protection Service), FA 1805001785755 (Forum June 11, 2018); American Fidelity Assurance Company v. yinsi baohu yi kai qi (Hidden by Whois Privacy Protection Service), FA 1710001752218 (Forum Nov. 20, 2017); and Securian Financial Group, Inc. v. yinsi baohu yi kai qi (Hidden by Whois Privacy Protection Service), FA 1709001749555 (October 23, 2017). Under Policy ¶ 4(b)(ii), this stands as proof of Respondent’s bad faith in registering and using the <availuty.com> and <availitt.com> domain names here at issue. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA 1209001464477 (Forum Nov. 30, 2012) (finding that a pattern of bad faith registration and use of domain names is evidence of bad faith registration and use of domain names under UDRP Policy ¶ 4(b)(ii)). See also Fandango, LLC v. 21562719 Ont Ltd, FA 1209001464081 (Forum Nov. 2, 2012):
Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).
We are also convinced by the evidence that Respondent’s use of the contested <availuty.com> and <availitt.com> domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this demonstrates Respondent’s bad faith in registering and using the domain names. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015):
The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).
Moreover, it is plain from the record that the <availuty.com> and <availitt.com> domain names are both instances of typo-squatting, i.e.: the creation of a domain name that is a deliberate misspelling of the mark of another in order to take advantage of the typing mistakes made by Internet users in entering into their web browsers the name of an enterprise with which they wish to do business online. Typo-squatting, without more, is proof of Respondent’s bad faith in registering and using the domain names. See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015):
Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).
Finally, under this head of the Policy, we conclude from the evidence before us that Respondent knew of Complainant and its rights in the AVAILITY mark when it registered the <availuty.com> and <availitt.com> domain names. This further shows Respondent’s bad faith in registering those domain names. See, for example, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in a mark when it registered a confusingly similar domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <availuty.com> and <availitt.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 29, 2018
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