The Charlotte-Mecklenburg Hospital Authority, d/b/a Atrium Health v. OB / OBOZA CAPUZ ERNILYN
Claim Number: FA2209002013598
Complainant is The Charlotte-Mecklenburg Hospital Authority, d/b/a Atrium Health (“Complainant”), represented by Nathan C Chase, United States of America. Respondent is OB / OBOZA CAPUZ ERNILYN (“Respondent”), PH.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <drlevine.org>, registered with NameSilo, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on September 27, 2022; Forum received payment on September 27, 2022.
On September 27, 2022, NameSilo, LLC confirmed by e-mail to Forum that the <drlevine.org> 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 September 28, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 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@drlevine.org. Also on September 28, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 20, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that, doing business as Atrium Health, it is a public hospital system based in Charlotte, North Carolina. It is one of the largest hospital systems in the United States. It operates the Levine Children’s Hospital, which provides pediatric medical care. The Levine Children’s Hospital is consistently rated as one of the best pediatric hospitals in the United States. Complainant claims trademark rights in the mark LEVINE CHILDREN’S HOSPITAL through its registration in the United States in 2013.
Complainant alleges that the disputed domain name is confusingly similar to its LEVINE CHILDREN’S HOSPITAL because it incorporates the dominant LEVINE portion of the mark and merely adds the letters “dr”, which stands for “medical doctor”. In addition, says Complainant, a portion of the resolving website is identical to a portion of Complainant’s legitimate website; this also shows confusing similarity of the disputed domain name.
Complainant presents evidence showing that at least one sub-domain of the resolving website is an identical copy of a legitimate website operated by Complainant providing information regarding Complainant’s Pediatric Blood and Marrow Transplant program.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Complainant to use its mark. Respondent is not commonly known by the disputed domain name and is not associated or affiliated with Complainant in any way.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. By incorporating a significant portion of Complainant’s mark and creating at least one sub-domain that resolves to a website that is an exact (and unauthorized) duplicate of a website operated by Complainant, Respondent has intended to and has created confusion with Complainant’s registered mark as to the source, sponsorship, affiliation and/or endorsement of Respondent’s website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LEVINE CHILDREN’S HOSPITAL and uses it to operate a hospital and to provide health services.
Complainant’s rights in its marks date back to 2013.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
A portion of the resolving website is identical to a portion of Complainant’s legitimate website.
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 disputed domain name incorporates the dominant portion LEVINE of Complainant’s LEVINE CHILDREN’S HOSPITAL mark and merely adds the generic term “dr” (which stands for “medical doctor) along with the “.org” generic top-level domain (“gTLD”). Such changes do not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See ADP, LLC. v. Ella Magal, FA 1773958 (Forum August 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
Furthermore, according to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”): “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation …, may support a finding of confusing similarity. …”.
Here, a portion of the resolving website is an identical, unauthorized, copy of a portion of Complainant’s website, providing information regarding Complainant’s Pediatric Blood and Marrow Transplant program. Thus the resolving website’s content trades off Complainant’s reputation and this supports the finding of confusing similarity.
For all these reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies “OB / OBOZA CAPUZ ERNILYN” as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The content of the resolving website falsely suggests that it is associated with Complainant. That is not a fair or legitimate use of the disputed domain name. Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner …”. See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014). Consequently the Panel finds that Respondent has failed to use the disputed domain name to make bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”). Thus the Panel finds bad faith registration and use under the Policy.
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: a portion of the resolving website is an exact copy of a portion of Complainant’s legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith registration and use under 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 <drlevine.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 21, 2022
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