UnitedHealth Group Incorporated v. UnitedHealth Group c/o Domain Administrator
Claim Number: FA0707001046006
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Renee
S. Kraft, of Fulbright & Jaworski, 2100 IDS
Center,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <untiedhealthcareonline.com>, registered with Nameview, 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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 26, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 27, 2007.
On August 7, 2007, Nameview, Inc. confirmed by e-mail to the National Arbitration Forum that the <untiedhealthcareonline.com> domain name is registered with Nameview, Inc. and that Respondent is the current registrant of the name. Nameview, Inc. has verified that Respondent is bound by the Nameview, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 14, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 4, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@untiedhealthcareonline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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." 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 <untiedhealthcareonline.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE ONLINE mark.
2. Respondent does not have any rights or legitimate interests in the <untiedhealthcareonline.com> domain name.
3. Respondent registered and used the <untiedhealthcareonline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, holds several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the UNITED HEALTHCARE ONLINE mark (e.g., Reg. No. 2,693,943 issued March 4, 2003 and Reg. No. 2,648,947 issued November 12, 2002). Complainant has used the UNITED HEALTHCARE ONLINE mark in connection with the distribution and sale of healthcare services and goods. Complainant currently serves seventy million Americans and earns revenues in excess of $71.5 billion annually under the UNITED HEALTHCARE ONLINE mark and its other registered trademarks. Complainant has registered the <unitedhealthcare.com> and <unitedhealthgroup.com> domain names, which it uses in connection with the marketing of its healthcare goods and services.
Respondent registered the <untiedhealthcareonline.com> domain name on June 10, 2003. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website, which displays a directory of links to third-party websites offering competing goods and services to those offered by Complainant under the UNITED HEALTHCARE ONLINE mark. The Panel infers that Respondent is receiving compensation for redirecting Internet users to these competing websites.
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."
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.”).
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.
Complainant has established rights in the UNITED HEALTHCARE
ONLINE mark under Policy ¶ 4(a)(i) through
registration of the mark with the USPTO.
Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb.
Forum June 4, 2007) (finding that “Complainant’s
timely registration with the USPTO and subsequent use of the BIG TOW mark
establishes rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also SDC
Media, Inc. v. SCMedia, FA 960250 (Nat. Arb. Forum June 7, 2007) (holding
that “[t]his trademark registration [with the USPTO] establishes Complainant’s
rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <untiedhealthcareonline.com>
domain name is confusingly similar to Complainant’s mark as it uses the mark in
its entirety and simply reverses the “i” and “t” in the word “united.” The Panel finds that the mere transposition
of the letters in the word “united” in Complainant’s mark does not sufficiently
alter the mark to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum
Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the
complainant’s GOOGLE mark and noting that “[t]he transposition of two letters
does not create a distinct mark capable of overcoming a claim of confusing
similarity, as the result reflects a very probable typographical error”); see
also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that
the domain name <peir1.com> is confusingly similar to the complainant's
PIER 1 mark).
Additionally, Respondent’s <untiedhealthcareonline.com> domain name adds the generic top-level domain (“gTLD”) “.com” to the mark. The Panel finds that the addition of a gTLD is irrelevant to the determination of whether a mark is confusingly similar under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent does not have rights or
legitimate interests in the <untiedhealthcareonline.com>
domain name. Complainant’s contention
establishes a prima facie case, which shifts the burden to Respondent to
show that it has rights or legitimate interests in the disputed domain name
under Policy ¶ 4(a)(ii). See
The Panel may assume that Respondent lacks rights or legitimate interests in this case because Respondent failed to respond to the Complaint. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). However, the Panel will consider all available evidence before determining whether Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant contends that Respondent is using the <untiedhealthcareonline.com> domain
name to redirect Internet users to Respondent’s website, which displays a
directory of links to third-party websites that compete with Complainant’s
goods and services sold under the UNITED HEALTHCARE ONLINE mark for which
Respondent receives compensation from.
The Panel finds that such use by Respondent is not a use in connection
with 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). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec.
31, 2002) (finding that the respondent’s diversionary use of the complainant’s
marks to send Internet users to a website which displayed a series of links,
some of which linked to the complainant’s competitors, was not a bona fide
offering of goods or services); see also Bank of
Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet
users seeking Complainant's website to a website of Respondent and for Respondent's
benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i)
and it is not a legitimate noncommercial or fair use under Policy ¶
4(c)(iii).”).
Additionally, Respondent offers no evidence and none is present in the record to indicate that Respondent is commonly known by the <untiedhealthcareonline.com> domain name. While Respondent’s WHOIS information identifies Respondents as “UnitedHealth Group c/o Domain Administrator,” Respondent offers no further evidence beyond the mere similarity in its name to demonstrate that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent has not sufficiently established rights in the <untiedhealthcareonline.com> domain name under Policy ¶ 4(c)(ii). 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”); see also Yahoo! Inc. v. Dough, FA 245971 (Nat. Arb. Forum May 5, 2004) (finding that although “the WHOIS information for the <yasexhoo.com> domain name states that the registrant is YASEXHOO . . . this alone is insufficient to show that Respondent is commonly known by the domain name.”).
Finally, Respondent’s <untiedhealthcareonline.com> domain name is merely a
common typographical mistake made by internet users who attempt to type in
Complainant’s UNITED HEALTHCARE ONLINE mark.
The Panel finds that Respondent’s domain name is simply a typosquatted
version of Complainant’s mark, which is evidence that Respondent does not have
rights or legitimate interests in the mark under Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that
the respondent lacked rights and legitimate interests in the disputed
domain names because it “engaged in the practice of typosquatting
by taking advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by
typing the letter ‘x’ instead of the letter ‘c’”).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent has registered and is using the <untiedhealthcareonline.com> domain name, which is confusingly similar to Complainant’s UNITED HEALTHCARE ONLINE mark, to redirect Internet users to Respondent’s website displaying a directory of links to third-party websites competing with Complainant’s goods and services. The Panel finds that such use by Respondent constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that respondent’s use of the disputed domain name to display links to services in competition with Complainant constituted disruption under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
Further, Respondent is using the <untiedhealthcareonline.com> domain name to redirect
Internet users to Respondent’s website for the profit of Respondent. The Panel finds that Internet users seeking Complainant’s
goods and services may become confused as to Complainant’s affiliation with
Respondent’s website. The Panel infers
that Respondent is profiting from this confusion through referral fees. Therefore, the Panel finds that Respondent’s
use of the disputed domain name to host links for Respondent’s commercial
benefit is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”); see
also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although
Complainant’s principal website is <century21.com>, many Internet users
are likely to use search engines to find Complainant’s website, only to be
mislead to Respondent’s website at the <century21realty.biz> domain name,
which features links for competing real estate websites. Therefore, it is likely that Internet users
seeking Complainant’s website, but who end up at Respondent’s website, will be
confused as to the source, sponsorship, affiliation or endorsement of
Respondent’s website.”).
Finally, the Panel finds that Respondent’s registration and
use of the <untiedhealthcareonline.com>
domain name, which is identical to Complainant’s UNITED HEALTHCARE ONLINE mark
except for the transposition of two letters, constitutes typosquatting. Such use by Respondent is evidence of bad
faith registration and use pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the
<zonelarm.com> domain name] that capitalizes on the typographical error
of an Internet user is considered typosquatting. Typosquatting, itself is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Post-Newsweek Stations, Inc.,
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <untiedhealthcareonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: September 21, 2007
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