Capital District Physicians' Health Plan, Inc. v. Domain Administrator / DVLPMNT MARKETING, INC.
Claim Number: FA1605001674984
Complainant is Capital District Physicians' Health Plan, Inc. (“Complainant”), represented by Victor A. Cardona of HESLIN ROTHENBERG FARLEY & MESITI P.C., New York, USA. Respondent is Domain Administrator / DVLPMNT MARKETING, INC. (“Respondent”), Saint Kitts and Nevis.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwcdphp.com>, registered with DNC Holdings, Inc.
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 May 13, 2016; the Forum received payment on May 13, 2016.
On May 16, 2016, DNC Holdings, Inc. confirmed by e-mail to the Forum that the <wwwcdphp.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, 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 May 19, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 8, 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@wwwcdphp.com. Also on May 19, 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 June 15, 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 uses the CDPHP mark in connection with its health insurance administration services. Complainant has registered the CDPHP mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,279,935, first use in commerce Nov. 1, 1991, filed Aug. 23, 2006, registered Aug. 14, 2007), which demonstrates rights in the mark. See Compl., at Attached Ex. A. Respondent’s <wwwcdphp.com> domain name is confusingly similar to the CDPHP mark as it incorporates the mark entirely and only adds the prefix “www” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <wwwcdphp.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <wwwcdphp.com> domain name. Rather, the disputed domain name resolves to a website containing hyperlinks that purport to redirect to the services of Complainant’s competitors. See Compl., at Attached Ex. B.
Respondent has attempted to attract Internet users to its website for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Respondent had actual or constructive knowledge of Complainant's rights in the CDPHP mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <wwwcdphp.com> domain name was registered on November 13, 2005.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 (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 the disputed domain name is confusingly similar to the Complainant’s registered trademark. The disputed domain name was registered before the issuance date of Complainant’s trademark. This is fatal to a UDRP claim unless the Complaint can establish secondary meaning in the mark that predates the registration of the disputed domain name. In this case, Complainant has made such showing. The Panel, therefore, finds that the Complainant possessed secondary meaning in its trademark at some date prior to Respondent’s registration of the disputed domain name.
Respondent arrives at the disputed domain name by merely adding the letters “www” before the exact mark and then the gTLD “.com” after the exact mark. This does not distinguish the disputed domain name from the Complainant’s registered trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark.
Further, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by the disputed domain name. The WHOIS information regarding the <wwwcdphp.com> domain name lists “Domain Administrator” as registrant. Complainant apparently has not given Respondent permission to use its CDPHP mark. The Respondent has not submitted a response in this proceeding. Therefore, in light of the available evidence, the Panel finds that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Further, Complainant argues that Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use through the <wwwcdphp.com> domain name. Rather, Complainant contends that the disputed domain name resolves to a website containing hyperlinks the purport to redirect to the services of Complainant’s competitors. See Compl., at Attached Ex. B. The link titles include “Medicare Plan Providers,” “Medigap Insurance Plans,” and “Best Medicare Supplement Plan.” See id. Respondent’s use of the Complainant’s mark to operate a pay-per-click website containing links to competing services do not to constitute a bona
fide offering of goods or services or a legitimate noncommercial or fair use.
Therefore, the Panel fins that Respondent’s <wwwcdphp.com> domain name constitutes neither a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii) and, as such, lacks any rights or legitimate interests in or to the disputed domain name.
Complainant argues that Respondent has attempted to attract Internet users to its website for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Complainant contends that Respondent registered the domain name to create a likelihood of confusion with Complainant and Complainant’s mark in order to profit from users looking for Complainant’s insurance services. The Panel finds that Internet user confusion that results in the redirection to competing websites and this constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Complainant further argues that Respondent had actual or constructive knowledge of Complainant's rights in the CDPHP mark. Complainant argues that Respondent’s offering of services competing with Complainant’s own offerings combined with Respondent’s use of Complainant’s CDPHP mark indicates that Respondent had actual knowledge of Complainant's mark and rights. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that, given the totality of the circumstances, Respondent had actual knowledge of Complainant's mark and rights and therefore finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
As such, the Panel finds that the 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 <wwwcdphp.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: June 16, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page