Hackensack Meridian Health, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2212002026006
Complainant is Hackensack Meridian Health, Inc. (“Complainant”), represented by Jennifer M. Mikulina of McDermott Will & Emery LLP, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hackensackmerideanhealth.org>, registered with Internet Domain Service BS Corp.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on December 30, 2022; Forum received payment on December 30, 2022.
On January 3, 2023, Internet Domain Service BS Corp confirmed by e-mail to Forum that the <hackensackmerideanhealth.org> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 January 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 2023 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@hackensackmerideanhealth.org. Also on January 9, 2023, 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 February 7, 2023, 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 it is an integrated network of healthcare providers that has changed how health care is delivered in the state of New Jersey, and surrounding areas. Complainant’s services are provided through an array of hospitals, ambulatory care centers, fitness and wellness centers, home health services, rehab centers, and skilled nursing centers. Complainant is now the largest healthcare provider in New Jersey, and as such, Complainant enjoys strong recognition of its marks in the field of healthcare. Complainant has rights in the HACKENSACK MERIDIAN HEALTH mark through its registration in the United States in 2018.
Complainant alleges that the disputed domain name is a typosquatted version of Complainant’s HACKENSACK MERIDIAN HEALTH mark, and it is confusingly similar to its mark because it consists of a misspelling of the mark (the second “i” in MERIDIAN is replaced by an “e”) with the addition of the “.org” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not licensed or authorized to use Complainant’s HACKENSACK MERIDIAN HEALTH mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a parked page with hyperlinks to third-party websites that offer competing services, as well as a link to Complainant’s legitimate website. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has engaged in a pattern of bad faith registration and use of domain names. Respondent offers the disputed domain name for sale for a price in excess of out of pocket costs. The resolving website displays pay-per-click hyperlinks to services that compete with those of Complainant. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in its mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark HACKENSACK MERIDIAN HEALTH and uses it to provide healthcare services.
Complainant’s rights in its mark date back to at least 2018.
The disputed domain names were registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays pay-per-click advertising hyperlinks for services that compete with those of Complainant; one such link redirects to Complainant’s legitimate website. The disputed domain name is offered for sale for a price in excess of out of pocket costs. Complainant has engaged in a pattern of bad faith registration and use of domain names.
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 consists of a misspelling of Complainant’s HACKENSACK MERIDIAN HEALTH mark (the second “i” in MERIDIAN is replaced by an “e”) with the addition of the “.org” generic top-level domain (“gTLD”). Misspelling a mark has been found insufficient to defeat a finding of confusing similarity. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant not licensed rights or otherwise authorized Respondent to use its HACKENSACK MERIDIAN HEALTH. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See 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). Here, the WHOIS information of record lists the registrant as “Carolina Rodrigues” with the organization “Fundacion Comercio Electronico.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website displays pay-per-click advertising hyperlinks for services that compete with those of Complainant. One such link redirects to Complainant’s legitimate website. Previous Panels have found that a respondent’s use of a disputed domain name to host pay-per-click links does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). In addition, Panels have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when a respondent merely redirects Internet traffic back to a complainant. See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have 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, as already noted, the resolving website displays advertising links to competing services. Previous Panels have determined that when a respondent uses a disputed domain name for hyperlinks, through which they are likely profiting, there is bad faith attraction for commercial gain pursuant to Policy ¶ 4(b)(iv). See The Dress Barn, Inc. v. Pham Dinh Nhut, FA 1503001611220 (Forum May 15, 2015) (“The Panel agrees that Respondent’s inclusion of various hyperlinks; some of which direct Internet users to competing websites of Complainant, some which direct Internet users to Complainant’s own website, and some of which are unrelated to Complainant’s business; evince bad faith attraction for commercial gain.”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Further, Respondent offers the disputed domain name for sale for a price well in excess of out of pocket costs. Previous Panels have held that a respondent’s use of a disputed domain name to offer it for sale constitutes bad faith under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Thus the Panel finds bad faith registration and use per Policy ¶ 4(b)(i).
Further, Complainant provides evidence that Respondent has been found to have registered and used domain names in bad faith in numerous prior UDRP proceedings. A respondent’s involvement in previous adverse UDRP proceedings indicates a pattern of bad faith use and registration, and thus bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA 1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Thus the Panel finds bad faith registrant and use under Policy ¶ 4(b)(ii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website includes a link back to 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 under Policy ¶ 4(a)(iii).
Finally, by merely replacing one letter “i” in Complainant’s mark with a letter “e”, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting 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 <hackensackmerideanhealth.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 7, 2023
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