Cerner Corporation v. yangzhichao
Claim Number: FA1512001653943
Complainant is Cerner Corporation (“Complainant”), represented by Leonard Searcy of Shook, Hardy & Bacon LLP, Missouri, United States. Respondent is yangzhichao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cernerheath.com>, registered with Hangzhou AiMing Network Co., LTD.
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 Forum electronically on December 23, 2015; the Forum received payment on December 31, 2015.
On December 28, 2015, Hangzhou AiMing Network Co., LTD confirmed by e-mail to the Forum that the <cernerheath.com> domain name is registered with Hangzhou AiMing Network Co., LTD and that Respondent is the current registrant of the name. Hangzhou AiMing Network Co., LTD has verified that Respondent is bound by the Hangzhou AiMing Network 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 January 5, 2016, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of January 25, 2016 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@cernerheath.com. Also on January 5, 2016, the Chinese language 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 February 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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
Complainant uses its CERNER HEALTH mark in connection with its business of consulting with and producing, marketing, and selling computer software and devices in the hospital and health industry. Complainant has registered the CERNER HEALTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,568,686, registered July 15, 2014), which demonstrates Complainant’s rights in its mark. The <cernerheath.com> domain is confusingly similar to Complainant’s mark as it incorporates Complainant’s mark in its entirety, while eliminating spacing between words and eliminating the “L”.
Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent did not make a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain resolves to an inactive webpage.
Respondent has registered and is using the disputed domain name in bad faith. First, Respondent has failed to make any active use of the disputed domain. Second, Respondent has engaged in the tactic of typosquatting. Finally, Respondent registered the disputed domain with actual knowledge of Complainant’s mark.
B. Respondent
The Panel notes that the disputed domain name was registered on November 7, 2014.
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(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 (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.”).
Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented in the record, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) Electrical Appliance Co. Ltd., D2008-0293 (WIPO Aug. 5, 2008); Solvay S.A. v. Hyun-Jun Shin, D2006-0593 (WIPO July 28, 2006)).
The Complainant has requested that English be the language of the proceeding for the following reasons:
The domain name <cernerheath.com> has been registered in Latin, rather than Chinese script, which indicates a familiarity on the part of the Respondent with European languages. The Panel further notes that Respondent’s typosquatting by changing the word “health” to “heart”, as discussed later in this opinion, also shows familiarity with Latin characters.
The Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties' ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl, DCC2006-0004 (WIPO Nov. 27, 2006); Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO Dec. 6, 2006)).
In view of the above, the Panel does not conclude that the Respondent will be prejudiced, should English be adopted as the language of the proceeding. Further, the Complainant will be spared the burden of dealing with Chinese as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) that English shall be the language of the proceeding.
Finding for Complainant
Complainant uses its CERNER HEALTH mark in connection with its business of consulting with and producing, marketing, and selling computer software and devices in the hospital and health industry. Complainant has registered the CERNER HEALTH mark with the USPTO (Reg. No. 4,568,686, registered July 15, 2014). Complainant argues that its USPTO registration demonstrates its rights in its mark. The Panel finds that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), with respect to the geographic disparity of the parties. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that the <cernerheath.com> domain is confusingly similar to Complainant’s mark as it incorporates Complainant’s mark in its entirety, eliminates spacing between words of the mark and eliminates the “L” from the word “health”. A previous panel in an earlier case found such alterations by the same Respondent (specifically, eliminating the “L” from the word “health”) failed to overcome a finding of confusing similarity in a Policy ¶ 4(a)(i) analysis. See Independence Blue Cross, LLC v. yangzhichao, FA 1625854 (Nat. Arb. Forum July 31, 2015). As such, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Further, Complainant argues that Respondent has no license or authorization to use Complainant’s mark. The Panel notes that the WHOIS information merely lists “yangzhichao” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent to be commonly known by the disputed domain name pursuant to 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 contends that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent’s disputed domain resolves to an inactive webpage. Previous panels have held that a respondent’s failure to make any active use of a domain does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has failed to make any active use of the disputed domain. Past panels have found evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where a respondent fails to make any active use of a domain. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith). Therefore, the Panel finds this non-use to constitute evidence of bad faith registration and use under Policy ¶ 4(a)(iii).
Complainant contends that Respondent has engaged in the tactic of typosquatting. In so arguing, Complainant alleges that Respondent’s uses its domain to take advantage of an Internet user’s mistake, omitting the “L” in “HEALTH.” The panel in Independence Blue Cross, LLC v. yangzhichao, FA 1625854 (Nat. Arb. Forum July 31, 2015) found that the domain name registered by same respondent, yangzhichao, in that case, similarly omitted the “L” in the word “HEALTH” in the complainants mark, and that this constituted intentional cybersquatting. For this same reason, the Panel finds that Respondent registered and is using the disputed domain in bad faith per Policy ¶ 4(a)(iii).
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 <cernerheath.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: February 16, 2016
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