Spruce Health, Inc. v. Syruss Finn, Alpine consulting partners
Claim Number: FA2211002019505
Complainant is Spruce Health, Inc. (“Complainant”), represented by Evan Brown of Neal & McDevitt, LLC, Illinois. Respondent is Syruss Finn, Alpine consulting partners (“Respondent”), District of Columbia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sprucehealth.us>, registered with NameCheap, Inc..
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.
Charles a. Kuechenmeister, Panelist.
Complainant submitted a Complaint to Forum electronically on November 8, 2022; Forum received payment on paper file date.
On November 8, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <sprucehealth.us> domain name (the Domain Name) is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 9, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 29, 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@sprucehealth.us. Also on November 9, 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 December 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant provides a platform for enabling communication relative to healthcare. It has rights in the SPRUCE mark based upon its registration of that mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <sprucehealth.us> Domain Name is confusingly similar to Complainant’s mark because it contains the SPRUCE mark in its entirety, merely adding the term “health” and the country-code top-level domain (“ccTLD”) “.us.”
Respondent has no rights or legitimate interests in the Domain Name. It does not own any service or trademarks reflecting the Domain Name, it is not affiliated or connected with Complainant and Complainant has not authorized it to use its mark, Respondent is not commonly known by the Domain Name, and Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it for one or more email accounts which it uses to impersonate Complainant and engage in fraudulent activity.
Respondent registered or uses the Domain Name in bad faith. It uses the Domain Name for an email account with which it seeks financial gain by impersonating Complainant and engaging in phishing. Also, Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the SPRUCE mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision, except where differences in the policies require a different analysis.
In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The SPRUCE mark was registered to Complainant with the USPTO (Reg. No. 4,893,409) on January 28, 2016 (USPTO registration certificate included in Amended Complaint Annex 2). Complainant’s registration of its mark with the USPTO establishes its rights in that mark for the purposes of ¶ 4(a)(i). Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”), 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 <sprucehealth.us> Domain Name is confusingly similar to Complainant’s SPRUCE mark. It incorporates the mark in its entirety, merely adding the descriptive term “health” and a gTLD. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). ). Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)), The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the SPRUCE mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following four nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) The respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;
(ii) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(iii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iv) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it does not own any service or trademarks reflecting the Domain Name, (ii) it is not affiliated or connected with Complainant and Complainant has not authorized it to use its mark, (iii) Respondent is not commonly known by the Domain Name, and (iv) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead uses it for one or more email accounts which it uses to impersonate Complainant and engage in fraudulent activity. These allegations are addressed as follows:
Complainant states that Respondent has no trademark or intellectual property rights in the Domain Name but offered no evidence specifically bearing upon the Policy ¶ 4(c)(i) factor. Complainants in usTLD cases can search one or more governmental trademark authorities and report negative results to establish a prima facie case as to Policy ¶ 4(c)(i). Complainant here offered no such evidence. Nevertheless, while it would have been preferable for Complainant to offer evidence bearing specifically upon this element, the evidence that is available is sufficient to establish that Respondent is not the owner or beneficiary of a trade or service mark identical to the Domain Name. The USPTO registration certificate demonstrating Complainant’s rights in the SPRUCE mark (Complaint Annex 2) evidences its rights in that mark dating from at least as early as the September 2014 first use date shown on that document. It is extremely unlikely that the USPTO or any other governmental trademark authority would have registered a trademark identical to <sprucehealth.us> or any other mark identical or similar to the Domain Name in the name of any person other than Complainant or one of its affiliates, or that Respondent could be the owner or beneficiary of a valid common law trade or service mark identical to the Domain Name. On this evidence, and in the absence of any evidence to the contrary, the Panel finds that Respondent is not the owner or beneficiary of a valid trade or service mark identical to the Domain Name.
Complainant states that Respondent is not connected or associated with Complainant and that Complainant has not licensed Respondent to use its SPRUCE mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. 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 interests in respect of the at-issue domain name.”).
The WHOIS information furnished to the Forum by the registrar and the WHOIS report submitted as Complaint Annex 2 list “Syruss Finn / Alpine consulting partners” as the registrant of the Domain Name. Neither of these names bears any resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), 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). The Panel is satisfied that the Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(iii).
Complaint Annex 3 is a copy of an email exchange between one aristeier@sprucehealth.us and a woman who the email from “aristeier” says has been selected for an employment interview with “Spruce Health.” The email from aristeier asks for the woman’s “email address of contact” so that the hiring manager, Ari Steier, can contact her and “go ahead with the process from there.” Complaint Annex 4 is a copy of a linked-in page showing that Ari Steier is in fact an employee of Complainant, albeit not the hiring manager. The Complaint Annex 3 email from aristeier@sprucehealth.us demonstrates that Respondent is impersonating Complainant, engaging with the woman for a discussion about employment purportedly with Complainant. The Complaint alleges phishing, stating that Respondent is attempting to have unwitting job applicants furnish their bank account information for direct deposit of paychecks and other sensitive data. Phishing is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. On the facts presented here there is a strong suggestion that if the interview proposed in the email actually occurred the Respondent would solicit personal, private information from the “applicant,” but there is no evidence before the Panel that solicitation of sensitive, personal information actually occurred. While phishing is not proven, Respondent is guilty of impersonating or passing off as Complainant. Using a confusingly similar domain name to send fraudulent emails is neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”), Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). [1]
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use of the Domain Name. As discussed above, Respondent is using the Domain Name to pass off as Complainant. Policy ¶ 4(b) recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing off as a complainant, in and of itself, is evidence of bad faith. Hewlett-Packard Development Company, L.P. v. Hyatt, FA1811001818756 (Forum Dec. 28, 2018) (“using a domain name to pose as a complainant to promote a fraudulent scheme has often been held to constitute bad faith”) (citations omitted); Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Next, although not argued by Complainant in so many words, Respondent registered and is using the Domain Name, which is confusingly similar to the SPRUCE mark. As discussed above, Respondent has no connection with that mark or its owner, the Complainant. Again, in light of the non-exclusive nature of Policy ¶ 4(b) the use of a domain name that is confusingly similar to a trademark with which the respondent has no connection is evidence of opportunistic bad faith. Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (“[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.”), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum March 3, 2020) (“the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.”).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in July of 2022 (WHOIS printout submitted as Complaint Annex 1 shows creation date). Complainant’s SPRUCE mark had been registered with the USPTO for more than eight years by that time (USPTO registration certificate submitted as Complaint Annex 2 shows first use in September 2014). More importantly, Respondent copied that mark exactly into the Domain Name, which also is Complainant’s exact corporate name, and impersonated Complainant in its emails, even to the extent of naming an actual employee of Complainant. In light of the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in a mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). 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).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <sprucehealth.us> Domain Name be TRANSFERRED TO COMPLAINANT.
Charles A. Kuechenmeister, Panelist
December 5, 2022
[1] The cases cited in this section were decided under the Uniform Dispute Resolution Policy (UDRP), which does not include usTLD Policy ¶ 4(c)(i). The usTLD Policy ¶¶ 4(c)(ii), (iii) and (iv) are identical to UDRP Policy ¶¶ 4(c)(i)(ii) and (iii).
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