McLaren Health Care Corporation v. Domain Privacy Service
Claim Number: FA1212001476170
Complainant is McLaren Health Care Corporation (“Complainant”), represented by Steven L. Permut of Reising Ethington P.C., Michigan, USA. Respondent is Domain Privacy Service (“Respondent”), Utah, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mcclarens.com>, registered with FastDomain 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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2012; the National Arbitration Forum received payment on December 17, 2012.
On December 17, 2012, FastDomain Inc. confirmed by e-mail to the National Arbitration Forum that the <mcclarens.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 December 19, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 8, 2013 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@mcclarens.com. Also on December 19, 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 January 18, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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’s Contentions
i. Respondent is not commonly known by the domain name in question. Complainant has not granted Respondent permission to use the McLAREN mark in any way.
ii. Respondent is using the disputed domain name to operate a website that displays third-party hyperlinks which resolve to unrelated websites in a similar field with Complainant.
i. Respondent’s domain name is connected to a website sponsoring health and medical insurance services as well as medical education services, which disrupts Complainant’s business.
ii. Respondent uses the disputed domain name to display third parties and provide hyperlinks directly to those third parties for which Respondent presumably profits by collecting click-through fees.
B. Respondent’s Contentions
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.”).
Complainant, McLaren Health Care Corporation, contends that it is the parent entity of a system that offers a continuum of health care through nine hospital facilities with 2,356 licensed beds and through primary and specialty physician services, 200 outpatient centers, urgent care facilities, occupational health centers, skilled nursing facilities, home health care services, behavioral health services, physical medicine and rehabilitation services, hospice services, comprehensive cancer care, and imaging services, medical educational services and medical insurance and health plan services, including HMO services and Preferred Provider Organization (PPO) insurance coverage. Complainant shows that it owns a trademark registration with the USPTO for the McLAREN mark (Reg. No. 4,224,362, filed Sept. 7, 2011; registered October 16, 2012). The Panel finds that Complainant’s registration of the McLAREN mark with the USPTO is sufficient to establish its rights in the mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). Further, the Panel finds that those rights date back to the original filing date with the USPTO of September 7, 2011. See Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”).
Complainant argues that Respondent’s <mcclarens.com> domain name is substantially identical to Complainant’s McLAREN mark as it wholly incorporates Complainant’s mark and simply misspells Complainant’s McLAREN mark. The Panel finds that Respondent’s addition of letters “c” and “s” to Complainant’s mark does not distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). Thus, the Panel concludes that Respondent’s <mcclarens.com> domain name is substantially identical to Complainant’s McLAREN mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent is not commonly known by the domain name in question. Complainant states that the WHOIS information indicates that Respondent’s true identity is ”Domain Privacy Service.” Complainant asserts that it has not granted Respondent permission to use the McLAREN mark in any way. The Panel notes that Respondent has not provided any additional evidence showing that it is commonly known by the disputed domain name. Thus, the Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant further contends that Respondent is using the disputed domain name to operate a website that displays third-party hyperlinks which resolve to unrelated websites in a similar field with Complainant. The Panel notes that Respondent’s disputed domain name resolves to a website that provides links titled “ROSS MEDICAL EDUCATION,” “AARP HEALTH INFORMATION,” “TOP DENTAL DISCOUNT PLANS,” and others. The Panel determines that Respondent’s use of the disputed domain name to display competing hyperlinks is not 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 H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent must have known of the existence of Complainant’s registered mark, in light of the substantial and extensive use of Complainant’s mark and Respondent’s competing usage of the resolving website. Thus, the Panel concludes that Respondent’s domain name was registered in bad faith.
Complainant asserts that Respondent’s domain name is connected to a website sponsoring health and medical insurance services as well as medical education services. The Panel notes that Respondent’s disputed domain name links to a website featuring competing hyperlinks such as “Health Insurance Plans,” “Best Healthcare Insurance,” “Hospitals,” and others. The Panel finds that Respondent’s use of the disputed domain name to feature websites that compete with Complainant disrupts Complainant’s business, evidencing bad faith registration and use under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant contends that Respondent uses the disputed domain name to display third parties and provide hyperlinks directly to those third parties for which Respondent presumably profits through the collection of click-through fees. The Panel notes that Respondent’s disputed domain name resolves to a website featuring hyperlinks that directly compete with Complainant. The Panel concludes that Respondent’s use of the disputed domain name to profit by featuring links that compete with Complainant shows 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.’”).
Complainant has therefore also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mcclarens.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: February 1, 2013
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