Indiana University Health, Inc. v. Jiang Li
Claim Number: FA2112001976676
Complainant is Indiana University Health, Inc. (“Complainant”), represented by Justin B. Perri of Blackstone Law Group LLP, New York, USA. Respondent is Jiang Li (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org>, registered with Xin Net Technology Corporation.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 10, 2021; the Forum received payment on December 10, 2021. The Complaint was received in English.
On December 13, 2021, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 December 30, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of January 19, 2022 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@myiuheallth.org, postmaster@myiyhealth.org, postmaster@myouhealth.org, postmaster@wwwmyiuhealth.org. Also on December 30, 2021, the Chinese and English 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 January 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant alleges that the entities which control the at-issue domain names are effectively controlled by the same person and/or entity. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Here, WHOIS data ultimately lists “Jiang Li” as the registrant of each domain name while listing a unique address for one of the domain names. All of the at-issue domain names incorporate Complainant’s IU HEALTH mark less its space ‑three with overt misspellings of the mark‑; the domain names each include a rendition of Complainant’s trademark prefixed by “my”; all use the same top-level, “.org”; and all of the domain names were registered with the same registrar. Therefore, each at-issue domain name appears to be related to, or controlled by, the same person or entity. Notably, Complainant’s contentions regarding control of the at-issue domain names are unopposed. Therefore, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding.
PRELIMINARY ISSUE: SUPPORTED LANGUAGE REQUEST
The relevant domain name registration agreement is written in Chinese, thereby making the language of the proceedings Chinese. Nevertheless, Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to conclude that the Respondent is conversant and proficient in the English language. Respondent’s domain names incorporate English words and all target a company headquartered in the United States. These circumstances give rise to the presumption that Respondent is proficient in English. Furthermore, conducting the proceedings in Chinese would unduly and unnecessarily burden Complainant. Importantly, Respondent made no objection with regard to the language of the proceedings being in English. Therefore, the Panel concludes that this proceeding should continue in English. See Morgan Stanley v. NaShan, FA1703414 (Forum Dec. 14, 2016) (holding proceedings in English language because the registration of a .store domain “primarily targets English-speaking Internet users” and the disputed name contains English words); see also, The Toronto-Dominion Bank v. Long Xiang, FA1817214 (Forum Dec. 11, 2018) (holding the proceeding should proceed in English because the term TD BANK, which is the dominant portion of one of the two disputed domain names at issue, does not carry any specific meaning in the Chinese language); see also, Siemens AG v. Li Chang Kong, D2017-1968 (WIPO) (proceeding with English language despite Chinese registration agreement because the disputed domain names consisted of Latin letters, rather than Chinese characters).
A. Complainant
Complainant contends as follows:
Complainant, Indiana University Health, Inc., operates a healthcare system in Indiana.
Complainant has rights in the IU HEALTH mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names are confusingly similar to Complainant’s mark as they all incorporate the IU HEALTH mark, three of which simply misspell the mark, adding the term “my” and/or “www,” and adding the “.org” generic top level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names. Respondent is not commonly known by any of the at-issue domain names and Complainant has not licensed or authorized Respondent to use the IU HEALTH mark. Additionally, Respondent does not use the at-issue domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use as each at-issue domain name redirect internet traffic to a website for a Chinese language browser chat plugin.
Respondent registered and uses the <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names in bad faith. Respondent engages in a pattern of bad faith registration. The domain names may be used for phishing or other malicious activities. Additionally, Respondent had actual knowledge of Complainant’s rights in the IU HEALTH mark based on the notoriety of the mark in the healthcare industry and the inclusion of the term “my” in each of the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the IU HEALTH mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the IU HEALTH trademark.
Respondent used the at-issue domain names to the redirect internet traffic to a website for a Chinese language browser chat plugin.
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”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the IU HEALTH mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). 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)).
Additionally, Respondent’s <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names each incorporate Complainant’s IU HEALTH trademark less its space or an overt misspelling of IU HEALTH. In each domain name, Complainant’s trademark is preceded by the term “my” and in one case by the terms “www” and “my.” Each domain name concludes with the top-level “.org.” Under the Policy the differences between each of the domain names and Complainant’s trademark do nothing to distinguish any of the domain names from Complainant’s IU HEALTH mark. Therefore, the Panel concludes that Respondent’s <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names are each confusingly similar to Complainant’s IU HEALTH trademark. See Chegg Inc. v. Company CEO / Qulity Programming, FA 1610061 (Forum Apr. 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) whereas “Respondent’s <chwgg.com> domain name is a simple misspelling of Complainant’s CHEGG.COM mark.”); see also BBY Solutions, Inc. v. Best Buy Online / M/S Best Buy Online, FA 1620654 (Forum July 2, 2015) (“The addition of the generic word ‘my’… does not prevent a finding that the disputed domain name and mark are identical or confusingly similar.”); see also, Citizens Financial Group, Inc. v. Paul Taylor, FA 1714579 (Forum Mar. 14, 2017) (“Similarly, addition of the letters “www” to the beginning of a mark in order to from a domain name does not distinguish the domain name for the purposes of a Policy ¶ 4(a)(i) analysis for confusing similarity.”); see also, Geisinger Clinic v. Hulmiho Ukolen / Poste restante, FA 1704945 (Forum Jan. 10, 2017) (“Complainant alleges that Respondent’s <geisnger.org> domain name is confusingly similar to the GEISINGER mark because it contains the mark, minus a letter “i,” combined with the gTLD “.org.” The Panel finds the <geisnger.org> domain name confusingly similar to the GEISINGER mark.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain names. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of any at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Moreover, the WHOIS information for the at-issue domain names identifies the domain names’ registrant as “Jiang Li” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by any at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by any at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names”).
Respondent uses its <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org>domain names to redirect internet traffic to a website for a Chinese Language browser chat plugin. Respondent’s use of the domain name to divert internet users to an unrelated third-party website indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Forum June 12, 2003) (finding that the respondent’s use of the domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also, Priceline.com LLC v. levesque, bruno, FA1506001625137 (Forum July 29, 2015) (“The Panel finds that Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a website unrelated to the mark does not engage in a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain names under Policy ¶ 4(a)(ii).
As discussed below without limitation, there is sufficient evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent has previously suffered an adverse UDRP decision as a respondent. Respondent has also registered Complainant’s trademark in multiple domain names. Respondent’s pattern of cybersquatting indicates Respondent’s bad faith regarding the instant dispute pursuant to Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).; see also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Next and as mentioned above regarding rights and legitimate interests, Respondent uses the confusingly similar at-issue domain names to redirect internet traffic to a third-party website. Doing so is disruptive of Complainant’s business under Policy ¶ 4(b)(iii) and shows Respondent’s attempt to attract internet users for commercial benefit under Policy ¶ 4(b)(iv). See Iowa Health System d/b/a UnityPoint Health v. Xiao Xia Cao, FA 1971511 (Forum Dec. 6, 2021) (“the at-issue domain name redirects internet traffic to a website unrelated to Complainant. . . . Such use of the confusingly similar [domain name] is disruptive of Complainant’s business and indicates Respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv).”); see also, MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Furthermore, Respondent had actual knowledge of Complainant’s rights in the IU HEALTH trademark when it registered <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> as domain names. Respondent’s actual knowledge is evident from Respondent’s incorporation of Complainant’s trademark into each domain name and from the notoriety of Complainant’s IU HEALTH mark. Respondent’s registration and use of the confusingly similar domain names with knowledge of Complainant’s rights in each such domain name additionally shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering 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 <myiuheallth.org>, <myiyhealth.org>, <myouhealth.org>, and <wwwmyiuhealth.org> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 26, 2022
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page