athenahealth, Inc. v. YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service)
Claim Number: FA1512001654821
Complainant is athenahealth, Inc. (“Complainant”), represented by Robert M. O’Connell, Jr. of Fish & Richardson P.C., Massachusetts, USA. Respondent is YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwathenahealth.com>, registered with HiChina Zhicheng Technology Limited.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 31, 2015; the Forum received payment on December 31, 2015.
On January 4, 2016, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <wwwathenahealth.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 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@wwwathenahealth.com. Also on January 6, 2016, 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 January 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has rights in the ATHENAHEALTH mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,737,212, registered on July 15, 2003). Respondent’s <wwwathenahealth.com> domain name is confusingly similar to the ATHENAHEALTH mark because it contains the entire mark, along with the letters “www” and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <wwwathenahealth.com> domain name, as the available WHOIS information lists “YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service)” as Registrant and because Respondent is not authorized to use the ATHENAHEALTH mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website is a parked page containing pay-per-click links to competitors of Complainant.
Respondent has demonstrated a pattern of bad faith registration and use of domain names through prior UDRP decisions decided against it. Respondent registered the <wwwathenahealth.com> domain name in bad faith because it was on notice of Complainant’s rights in the ATHENAHEALTH mark at the time it registered the domain.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <wwwathenahealth.com> domain name was created on August 16, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark, that Respondent has no rights or legitimate interests in or to the disputed domain name, and that Respondent has engaged in bad faith use and registration of the disputed domain name.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by 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.
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.”).
The Panel finds that there can be little doubt that the disputed domain name is confusingly similar to Complainant’s registered trademark. Such registration adequately establishes Complainant’s rights in the trademark. Respondent arrives at the disputed domain name by merely adding the letters “www” before the registered trademark and the gTLD “.com” after. As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark.
In addition, the Panel finds that there is no evidence in this record that shows that Respondent has any rights or legitimate interest in or to the disputed domain name. It is not known by the disputed domain name and it does not have the Complainant’s permission to register the disputed domain name. As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that the Respondent has engaged in bad faith use and registration.
Complainant adequately establishes that Respondent has demonstrated a pattern of bad faith registration and use of domain names through prior UDRP decisions decided against it. Complainant cites the following cases to demonstrate this pattern: H-D U.S.A., LLC v. YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service), FA1411001591216 (Nat. Arb. Forum Dec. 22, 2014); Skorpio Limited v. YinSi BaoHu Yi KaiQi (hidden by Whois Privacy Protection Service) / zhou Eaysu, Case No. D2014-1547; Novartis AG v. YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service), FA1412001595426 (Nat. Arb. Forum Jan. 24, 2015); and Electrolux v. Zhang Yu Han / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service), Case No. D2015-1003.
This pattern of bad faith use and registration is persuasive to establish that Respondent has engaged, once again, in bad faith use and registration.
Viewing the totality of circumstances, it is apparent that Respondent had actual notice of Complainant’s rights and interests in and to the registered trademark. As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <wwwathenahealth.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 29, 2016
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