UnitedHealth Group Incorporated v. Zhichao Yang
Claim Number: FA1508001635392
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Julia K. Sutherland of Seyfarth Shaw LLP, Illinois, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com>, registered with Ename Technology Co., Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 27, 2015; the Forum received payment on September 4, 2015.
On August 30, 2015, Ename Technology Co., Ltd. confirmed by e-mail to the Forum that the <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com> domain names are registered with Ename Technology Co., Ltd. and that Respondent is the current registrant of the names. Ename Technology Co., Ltd. has verified that Respondent is bound by the Ename 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 15, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2015 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@aarpmedicaressupplement.com, postmaster@aarpmedicaresupliment.com, postmaster@aarpmedicaresupllement.com, postmaster@aarpmedicaresupplemnt.com, postmaster@aarpmedicaresupplimentplan.com, postmaster@aarpmedicaresuppplement.com, postmaster@aarpmymedicareplan.com, postmaster@arpunitedhealthcare.com, postmaster@arrpunitedhealthcare.com, postmaster@hiheathinnovations.com, postmaster@mmyaarpmedicare.com, postmaster@myaarphopitalplan.com, postmaster@myaarpmedeicare.com, postmaster@myaarpmedicared.com, postmaster@myaarpmeedicare.com, postmaster@myaatpmedicare.com, postmaster@myarapmedicare.com, postmaster@myarphospitalplan.com, postmaster@myarrphospitalplan.com, postmaster@myuhccom.com, postmaster@myuhcmilitarywest.com, postmaster@myuhcrivervalley.com, postmaster@myyaarpmedicare.com, postmaster@ubcexchangebilling.com, postmaster@uhcbillingexchange.com, postmaster@uhccommunitypan.com, postmaster@uhccommunityplans.com, postmaster@uhccommuntyplan.com, postmaster@uhcexchanfebilling.com, postmaster@uhcexchangebiliing.com, postmaster@uhcexchangebillibg.com, postmaster@uhcexchangebillig.com, postmaster@uhcexchangebillimg.com, postmaster@uhcexchangebillings.com, postmaster@uhcexchangebillling.com, postmaster@uhcexchangerbilling.com, postmaster@uhcexchangevilling.com, postmaster@uhcexchangrbilling.com, postmaster@uhcexchanhebilling.com, postmaster@uhcexcjangebilling.com, postmaster@uhcexcnangebilling.com, postmaster@uhcezchangebilling.com, postmaster@uhckid.com, postmaster@uhcreetiree.com, postmaster@uhcretires.com, postmaster@uhcretirre.com, postmaster@uhcretriee.com, postmaster@uhcwet.com, postmaster@uheexchangebilling.com, postmaster@uhsexchangebilling.com, postmaster@uscexchangebilling.com, postmaster@wwwaarpsupplementalhealth.com, postmaster@wwwmyaarpmedicareplan.com, postmaster@wwwuhcbabyblocks.com, postmaster@wwwuhccommunityplan.com, postmaster@wwwuhcmilitarywest.com, postmaster@yaarpmedicare.com. Also on September 15, 2015, 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 9, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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’s Contentions
1. Complainant, UnitedHealth Group Incorporated, is a leading innovator in the health care industry, providing health care benefit products and services, population health management services, and health information, technology, and consulting services in the U.S. and in over 20 countries. Complainant owns rights in the following trademarks through registration with the United States Patent and Trademark Office (“USPTO”): UNITEDHEALTHCARE (Reg. No. 4,280,324, registered Jan. 22, 2013); HI HEALTHINNOVATIONS (Reg. No. 4,281,461, registered Jan. 29, 2013); and BABY BLOCKS (Reg. No. 4,388,728, registered Aug. 20, 2013). Further, Complainant owns common law rights to the UHC mark. Additionally, Complainant owns a license agreement with AARP to use the AARP mark (e.g. Reg. No. 1,047,005, registered Aug. 24, 1976). The disputed domain names are confusingly similar to Complainant’s marks. The domain names include the following modifications to Complainant’s marks: 1) misspelled versions of Complainant’s marks; 2) the addition of generic words or terms to Complainant’s marks; 3) the addition of the terms “www” or “com” to Complainant’s marks; 4) merging two of Complainant’s marks together; and 5) the addition of the generic top-level domain (“gTLD”) “.com.”
2. Respondent should be considered as having no rights or legitimate interests in respect of the domain names. Respondent is not commonly known by the disputed domain names, because Respondent is not a licensee of Complainant, has no relationship or association with Complainant, and is not authorized to use Complainant’s marks in any way. Further, Respondent has failed to establish a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names. Respondent is using the disputed domain names in connection with pay-per-click sites that are affiliated with Complainant’s services and/or healthcare insurance services offered by Complainant’s competitors. See Compl., at Attached Ex. 7. Additionally, Internet users are directed to various different websites each time the user visits the <uhccommunityplan.com> domain name, where users may encounter a game, a false warning from Facebook, or a video proclaiming to award prizes. Such websites are presumably connected to phishing schemes. See Compl., at Attached Ex. 8.
3. The disputed domain names have been registered and are being used in bad faith. Respondent intentionally diverts Internet users to competing services, which results in a disruption of Complainant’s business. Further, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks. Finally, Respondent plainly knew of Complainant’s marks at the time of registration.
B. Respondent
1. Respondent failed to submit a Response in this proceeding.
Supported Language Request
The Panel notes that Complainant makes requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Chinese language Registration Agreement. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would evince a familiarity with the English language, filing of a trademark registration with an entity which evinces an understanding of the English language, and any evidence (or lack thereof) evincing Respondent’s understanding of the Chinese language included in the Registration Agreement. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by the Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
1. Respondent’s domain names <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com>, registered with Ename Technology Co., Ltd. are confusingly similar to Complainant’s UNITEDHEALTHCARE, Hl HEALTHINNOVATIONS, and BABY BLOCKS marks.
2. Respondent does not have any rights or legitimate interests in the <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com>, registered with Ename Technology Co., Ltd. domain names.
3. Respondent registered or used the <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com>, registered with Ename Technology Co., Ltd. domain names 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.”).
Complainant, UnitedHealth Group Incorporated, is a leading innovator in the health care industry, providing health care benefit products and services, population health management services, and health information, technology and consulting services in the U.S. and in over 20 countries. Complainant contends that it owns rights in the following trademarks through registration with the USPTO: UNITEDHEALTHCARE (Reg. No. 4,280,324, registered Jan. 22, 2013); HI HEALTHINNOVATIONS (Reg. No. 4,281,461, registered Jan. 29, 2013); and BABY BLOCKS (Reg. No. 4,388,728, registered Aug. 20, 2013). Prior panels have concluded that registration of a mark with a trademark authority is sufficient to establish rights in the mark pursuant to 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)). Accordingly, the Panel finds that Complainant’s USPTO registration for the UNITEDHEALTHCARE, HI HEALTHINNOVATIONS, and BABY BLOCKS is sufficient under Policy ¶ 4(a)(i).
Further, Complainant asserts that it owns common law rights to the UHC mark. The Panel is reminded that the Policy does not require that Complainant’s trademark be registered by a government authority or agency to establish rights in the mark under ¶ 4(a)(i). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). The Panel notes that Complainant has not provided any evidence of secondary meaning in the UHC mark; however, the Panel notes that UHC is the abbreviation for “United HealthCare” and that Complainant has used the UHC mark in its legitimate websites, <uhc.com> (created August 30, 1994), and <myuhc.com> (created July 4, 1999), among several others. This Panel finds that Complainant has established secondary meaning in its UHC mark, and thus may find Complainant owns common law rights in the mark, satisfying the initial requirement of Policy ¶ 4(a)(i). See Congregation Shuvah Yisrael, Inc. v. Neckonoff, FA 1043126 (Nat. Arb. Forum Sept. 7, 2007) (finding that a complainant’s mark had established secondary meaning where the complainant had previously held the registration for a domain name identical to the mark); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established) .
Additionally, Complainant argues that it owns a license agreement with AARP to use the AARP mark (e.g. Reg. No. 1,047,005, registered Aug. 24, 1976). Thus, under its license agreement, Complainant contends that it legitimately owns and operates <aarpmedicaresupplement.com>, <aarpmedicareplans.com>, <aarpmedsuppretirees.com> and <myaarpmedicareplans.com>. Previous panels have held that a complainant may establish rights in a trademark where it can prove it holds a license agreement to use a registered mark. See Stevenson v. Crossley, FA 1028240 (Nat. Arb. Forum Aug. 22, 2007) (“Per the annexed U.S.P.T.O. certificates of registration, assignments and license agreement executed on May 30, 1997, Complainants have shown that they have rights in the MOLD-IN GRAPHIC/MOLD-IN GRAPHICS trademarks, whether as trademark holder, or as a licensee. The Panel concludes that Complainants have established rights to the MOLD-IN GRAPHIC SYSTEMS mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Complainant owns rights in the AARP mark per its license agreement pursuant to Policy ¶ 4(a)(i).
Complainant alleges that the disputed domain names are confusingly similar to Complainant’s UNITEDHEALTHCARE, HI HEALTHINNOVATIONS, and BABY BLOCKS, UHC, and AARP marks. The domain names include the following modifications to Complainant’s marks: 1) misspelled versions of Complainant’s marks; 2) the addition of generic words or terms to Complainant’s marks; 3) the addition of the terms “com” or “www” to Complainant’s marks; 4) merging two of Complainant’s marks together; and 5) the addition of the gTLD “.com.”
First, previous panels have held that including misspelled variations of a complainant’s mark is insufficient to overcome confusing similarity. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). Second, past panels have concluded that the addition of generic terms is incapable of extinguishing confusion. See Warner Bros. Entm’t Inc. v. Sadler, FA 250236 (Nat. Arb. Forum May 19, 2004) (finding the addition of generic terms to Complainant’s HARRY POTTER mark in the respondent’s <shop4harrypotter.com> and <shopforharrypotter.com> domain names failed to alleviate the confusing similarity between the mark and the domain names). Third, panelists have held that the addition of letters such as “com” and “www” does little to negate confusing similarity. See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar); see also Borders Props., Inc. v. Hewitt, FA 114618 (Nat. Arb. Forum July 23, 2002) (“The added ‘com’ does not defeat a confusing similarity claim because it takes advantage of a common typographical error. It is a basic mistake to type ‘com’ twice without typing the period after the targeted search term . . . [t]herefore, Respondent’s domain name is confusingly similar to Complainant’s mark.”). Fourth, past panels have found that the merging of two trademarks is not sufficient to create distinctiveness. See Yahoo! Inc. v. Domain Contact 3, FA 1222420 (Nat. Arb. Forum Oct. 13, 2008) (holding that the <hotjobsyahoo.com> domain name is confusingly similar to Complainant’s HOTJOBS mark because the disputed domain name merely combined Complainant’s HOTJOBS mark with Complainant’s YAHOO! mark). Finally, past panels have routinely held that the addition of the “.com” gTLD is irrelevant to Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
As a result, the Panel finds that the <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresuppplement.com> <aarpmedicaresupplimentplan.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <myaarpmedicared.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com> <mmyaarpmedicare.com>, <myaarpmedeicare.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myyaarpmedicare.com>, <yaarpmedicare.com> <myaarphopitalplan.com>, <myarphospitalplan.com> and <myarrphospitalplan.com> domain names are confusingly similar to the AARP mark, that the <hiheathinnovations.com> domain name is confusingly similar to the HI HEALTHINNOVATIONS mark, that the <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <uhckid.com>, <wwwuhcmilitarywest.com> , <myuhccom.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretriee.com>, <wwwuhccommunityplan.com>, <ubcexchangebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcretirre.com>, <uhcwet.com>, <uhcexchanfebilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com> and <uhcezchangebilling.com> domain names are confusingly similar to the UHC mark, and that the <wwwuhcbabyblocks.com> is confusingly similar to the UHC and BABY BLOCKS marks under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent should be considered as having no rights or legitimate interests in respect of the domain names. Complainant alleges that Respondent is not commonly known by the disputed domain names, because Respondent is not a licensee of Complainant, has no relationship or association with Complainant, and is not authorized to use Complainant’s marks in any way. The Panel also notes that the WHOIS information for the disputed domain name lists “Zhichao Yang” as the registrant of these records. See Compl., at Attached Ex. 2. Without a response from Respondent to deny these allegations, the Panel may conclude that Complainant’s contentions are sufficient to establish that Respondent lacks rights and legitimate interests in the disputed domain names. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Further, Complainant argues that Respondent has failed to establish a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names. According to Complainant, Respondent is using the disputed domain names in connection with pay-per-click sites that are affiliated with Complainant’s services and/or healthcare insurance services offered by Complainant’s competitors. See Compl., at Attached Ex. 7. The Panel sees that some of the hyperlinks contained in Respondent’s resolving websites include “Medicare Supplement Plans,” “Best Medicare Supplement Plans,” and “Aarp Insurance.” Previous panels have found that use of a disputed domain name to feature links to competing services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Thus, the Panel finds that Respondent has not established a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names.
Complainant further argues that Respondent lacks rights and legitimate interests in respect of the <uhccommunityplan.com> domain name, as users are directed to various different websites each time the user visits the website. Complainant contends that users may encounter a game, a false warning from Facebook, or a video proclaiming to award prizes. See Compl., at Attached Ex. 8. Complainant urges that some of these uses may expose Internet users to phishing schemes, where they might reveal personal information to Respondent. Prior panels have found that using a phishing scheme is evidence that a respondent lacks rights and legitimate interests in the disputed domain name. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel finds that Respondent’s use of the <uhccommunityplan.com> domain name is additional evidence that Respondent lacks rights and legitimate interests in the disputed domain name.
Complainant argues that Respondent intentionally diverts Internet users to competing services, which results in a disruption of Complainant’s business. Complainant claims that the disputed domain names resolve to websites that contain links to sites that offer Complainant’s services, as well as Complainant’s competitor’s services. See Compl., at Attached Ex. 7. Previous panels have found that competing hyperlinks are evidence of bad faith under Policy ¶ 4(b)(iii), as they compete with and disrupt a complainant’s business. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). The Panel therefore determines that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii).
Further, Complainant alleges that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks. Complainant infers that Respondent benefits from consumer confusion and diversion by receiving click-through commissions. Past panelists have found that hyperlinks are typically connected to click-through revenue, and are therefore indicative of bad faith under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). As such, the Panel finds that Respondent is using the disputed domain names in bad faith in violation of Policy ¶ 4(b)(iv).
Finally, Complainant claims that Respondent plainly knew of Complainant’s marks at the time of registration. Complainant contends that the first registration occurred in 2013, long after Complainant began using its mark and well after registration of Complainant’s protected trademarks. Complainant urges that its services had already received significant consumer and industry popularity and recognition at the time Respondent registered the disputed domain names. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's marks, Respondent had actual knowledge of the marks and Complainant's rights. Thus, the Panel holds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aarpmedicaressupplement.com>, <aarpmedicaresupliment.com>, <aarpmedicaresupllement.com>, <aarpmedicaresupplemnt.com>, <aarpmedicaresupplimentplan.com>, <aarpmedicaresuppplement.com>, <aarpmymedicareplan.com>, <arpunitedhealthcare.com>, <arrpunitedhealthcare.com>, <hiheathinnovations.com>, <mmyaarpmedicare.com>, <myaarphopitalplan.com>, <myaarpmedeicare.com>, <myaarpmedicared.com>, <myaarpmeedicare.com>, <myaatpmedicare.com>, <myarapmedicare.com>, <myarphospitalplan.com>, <myarrphospitalplan.com>, <myuhccom.com>, <myuhcmilitarywest.com>, <myuhcrivervalley.com>, <myyaarpmedicare.com>, <ubcexchangebilling.com>, <uhcbillingexchange.com>, <uhccommunitypan.com>, <uhccommunityplans.com>, <uhccommuntyplan.com>, <uhcexchanfebilling.com>, <uhcexchangebiliing.com>, <uhcexchangebillibg.com>, <uhcexchangebillig.com>, <uhcexchangebillimg.com>, <uhcexchangebillings.com>, <uhcexchangebillling.com>, <uhcexchangerbilling.com>, <uhcexchangevilling.com>, <uhcexchangrbilling.com>, <uhcexchanhebilling.com>, <uhcexcjangebilling.com>, <uhcexcnangebilling.com>, <uhcezchangebilling.com>, <uhckid.com>, <uhcreetiree.com>, <uhcretires.com>, <uhcretirre.com>, <uhcretriee.com>, <uhcwet.com>, <uheexchangebilling.com>, <uhsexchangebilling.com>, <uscexchangebilling.com>, <wwwaarpsupplementalhealth.com>, <wwwmyaarpmedicareplan.com>, <wwwuhcbabyblocks.com>, <wwwuhccommunityplan.com>, <wwwuhcmilitarywest.com> and <yaarpmedicare.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: October 22, 2015
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