Availity, L.L.C. v. zhang wei
Claim Number: FA1907001854450
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is zhang wei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availitty.com>, registered with NameSilo, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 29, 2019; the Forum received payment on July 29, 2019.
On July 29, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <availitty.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 July 31, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 20, 2019 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@availitty.com. Also on July 31, 2019, 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 August 22, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Availity, L.L.C., delivers revenue cycle and related business solutions for healthcare professionals. Complainant has rights in the AVAILITY mark based upon the registration with the United States Patent Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). Respondent’s <availitty.com> is confusingly similar to Complainant’s mark as Respondent incorporates the entire AVAILITY mark, merely adds the letter “t” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <availitty.com> domain name. Respondent is not licensed or authorized to use Complainant’s AVAILITY mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <availitty.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the <availitty.com> domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements for health insurance and Medicare.
Respondent registered and uses the <availitty.com> domain name in bad faith. Respondent engages in a pattern of bad faith registration by registering domain names that incorporate well-known, third party marks. Additionally, Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name which features click-through advertisements to third party websites. Further, Respondent is engaging in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Availity, L.L.C., delivers revenue cycle and related business solutions for healthcare professionals. Complainant has rights in the AVAILITY mark based upon the registration with the USPTO (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). Respondent’s <availitty.com> is confusingly similar to Complainant’s mark.
Respondent registered the <availitty.com> domain name on June 10, 2019.
Respondent does not have rights or legitimate interests in the <availitty.com> domain name. Respondent uses the <availitty.com> domain name to divert Internet users to Respondent’s website where Respondent hosts pay-per-click advertisements for health insurance and Medicare.
Respondent registered and uses the <availitty.com> domain name 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(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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the AVAILITY mark based upon its registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i).
Respondent’s <availitty.com> domain name is confusingly similar to the AVAILITY mark as it contains the mark in its entirety, merely adding the letter “t” and the “.com” gTLD.
Respondent has no rights or legitimate interests in <availitty.com> domain name. Respondent is not licensed or authorized to use the AVAILITY mark. The WHOIS information of record identifies Respondent as “zhang wei.” Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Therefore, Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the <availitty.com> domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Specifically, Respondent uses the disputed domain name to host a parked webpage that contains links to third party websites which compete with Complainant’s business. See Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
Respondent registered and uses the <availitty.com> domain name in bad faith. Respondent engages in a pattern of bad faith registration by registering domain names which include famous, third party marks. Registration of other domain names which include thousands of third party trademarks is evidence of bad faith under Policy ¶ 4(b)(ii). See Late Rooms Ltd. v. zhu xumei, FA 1702001717537 (Forum Mar. 31, 2017) (respondent’s registration of at least 196 other domains that were confusingly similar to famous companies showed serial cybersquatting and bad faith). Here, Complainant provides a copy of a “reverse whois” search for the email address from Respondent’s Whois record. According to this search, there are 4,350 domain names associated with Respondent’s email address. The domain names include misspellings of many well-known trademarks, including <aamericangreetings.com>; <abercrmobie.com>; <afffirm.com>; <airfance.com>; <airfrance.us>; <ameericancentury.com>; <anntayloor.com>; <athenahelth.com>; and many others. Thus, the Panel finds Respondent engages in a pattern of bad faith registration per Policy ¶ 4(b)(ii).
Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name which features click-through advertisements that redirect users to Complainant’s competitors. Using a confusingly similar domain name to disrupt a complainant’s business and commercially benefit via competing, pay-per-click links shows bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (iv). Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”).
Here, Complainant contends that Respondent’s typosquatting of the disputed domain name is intended to mislead Internet users and disrupt Complainant’s business by diverting Internet traffic away from Complainant’s site to Respondent’s website. Complainant then claims Respondent hosts links to third party websites that compete directly with Complainant’s business to generate click-through advertisement revenue. The Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <availitty.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 5, 2019
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