Centura Health Corporation v. Hasan Iqbal
Claim Number: FA2301002026372
Complainant is Centura Health Corporation (“Complainant”), represented by Chad T. Nitta of Kutak Rock LLP, US. Respondent is Hasan Iqbal (“Respondent”), BD.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mycenturahealth.me>, (‘the Domain Name’) registered with Porkbun 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on January 4, 2023; Forum received payment on January 4, 2023.
On January 05, 2023, Porkbun LLC confirmed by e-mail to Forum that the <mycenturahealth.me> Domain Name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 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@mycenturahealth.me. 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 4, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark CENTURA HEALTH registered in the USA for health care services with first use recorded as 1996. It runs a portal at mycenturahealth.org.
The Domain Name registered in 2021 is confusingly similar to the Complainant’s trade mark incorporating the Complainant’s mark in its entirety and adding only the generic term ‘my’ (reflecting the name of the Complainant’s portal) and the ccTLD .me indicating Montenegro which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the Complainant’s mark.
The Respondent is using the Domain Name for a site offering competing healthcare services using the Complainant’s mark, the words ‘Official Portal’ and the real url of the Complainant’s portal mycenturahealth.org in its masthead. The website attached to the Domain Name incorporates information about the Complainant and its online patient portal as well as pictures of the Centura Health building to give the impression that it is run by the Complainant. Although the Respondent’s site mentions in multiple places that the official patient portal is at <mycenturahealth.org>, it does so in a way to provide a user the false impression that the site attached to the Domain Name is also run by the Complainant. The site contains a “Login” link which will take the user to a separate page that opens to several embedded advertisements for various applications and websites that give the impression they are “sponsored” by the Complainant. The “About Us” page, has a section discussing the features of “[t]he MyCenturaHealth patient portal,” but the “MyCenturaHealth” portion of the text is hyperlinked back to the home page of the Respondent’s site, adding an additional layer of intentional confusion and misdirection. The contact us page of the site appears to be collecting users’ information. All this use is very misleading and not a bona fide offering of services or a non commercial or fair use. The Respondent does not have rights or a legitimate interest in the Domain Name.
The reference to the Complainant and its portal on the Respondent’s web site shows that the Respondent has actual knowledge of the Complainant and its business.
The Domain Name has been registered and used in opportunistic bad faith and used for a site offering competing healthcare services and third party advertisements which is registration and use in bad faith confusing Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the marks CENTURA HEALTH registered in the USA for health care services with first use recorded as 1996. It runs a portal at mycenturahealth.org.
The Domain Name registered in 2021 is being used for a site offering competing healthcare services using the Complainant’s mark, the words ‘Official Portal’ and the real url of the Complainant’s portal mycenturahealth.org in its masthead, pictures of the Complainant’s building, and multiple references to the Complainant’s portal which link back to the site attached to the Domain Name, all suggesting the latter is an official site of the Complainant. The site also features third party advertisements.
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 Domain Name in this Complaint combines the Complainant’s CENTURA HEALTH mark (registered, inter alia, in the USA for healthcare services with first use recorded as 1996), the generic term ‘my’ and the ccTLD .me indicating Montenegro.
The addition of a generic term does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016)(Finding the addition of a generic term insufficient to distinguish a disputed domain name from a mark under Policy 4 (a) (i).) Accordingly the addition of the generic term ‘my’ does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Adding a ccTLD such as .me (designating Montenegro but often used informally to mean the common word me) does not serve to distinguish a domain name from a complainant’s mark. See Thomson Reuters Global Resources v Matthew Krawitz, FA 1548336 (Forum Apr. 21, 2014) (“Respondent adds the country-code top-level domain (“ccTLD”) “.co” to Complainant’s mark in the disputed domain name, which also fails to distinguish the domain name from Complainant’s mark”).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 web site attached to the Domain Name offers competing commercial healthcare services not associated with the Complainant, but does not make it clear that there was no commercial connection with the Complainant. The Complainant’s mark, the words ‘Official Portal’ and the real url of the Complainant’s portal mycenturahealth.org are being used in the masthead of the site implying the site is an official site of the Complainant. Pictures of the Complainant’s building and multiple references to the Complainant’s portal which link back improperly to the site at the Domain Name also give the impression that the latter is an official site of the Complainant. The Panel finds this use was confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate non commercial fair use; see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Respondent has not answered this Complaint or rebutted the prima face case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site which offers competing healthcare services is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as the Complainant’s mark in used in its masthead and the words ‘Official Portal’ and the real url of the Complainant’s portal mycenturahealth.org are also used in the masthead so as to appear to be an official site of the Complainant. Pictures of the Complainant’s building and references to the Complainant’s portal which improperly link back to the Respondent’s site also give the impression the latter is associated with the Complainant when it is not. Third party advertisements on the site may also appear to be endorsed by the Complainant when they are not.
The reference to the Complainant and its portal on the Respondent’s web site and the picture of the Complainant’s building shows that the Respondent has actual knowledge of the Complainant and its business.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mycenturahealth.me> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 4, 2023
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