Centura Health Corporation v. Mary Flores
Claim Number: FA2302002031051
Complainant is Centura Health Corporation (“Complainant”), represented by Chad T. Nitta of Kutak Rock LLP, Colorado, USA. Respondent is Mary Flores (“Respondent”), Maryland, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mycenturahealth.us>, registered with NameSilo, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on February 8, 2023; Forum received payment on February 8, 2023.
On February 8, 2023, NameSilo, LLC confirmed by e-mail to Forum that the <mycenturahealth.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 1, 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.us. Also on February 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 March
8, 2023, pursuant to Complainant's request to have the dispute decided by a single-member
Panel, Forum appointed Sandra J.
Franklin 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 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, 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
1. Respondent’s <mycenturahealth.us> domain name is confusingly similar to Complainant’s CENTURA HEALTH mark.
2. Respondent does not have any rights or legitimate interests in the <mycenturahealth.us> domain name.
3. Respondent registered and uses the <mycenturahealth.us> domain name in bad faith.
B. Respondent did not file a Response.
Centura is a non-profit, Christian healthcare system. Complainant holds a registration for the CENTURA HEALTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,131,776, registered January 27, 1998).
Respondent registered the <mycenturahealth.us> domain name on August 23, 2021, and uses it to diverting users to its website containing false advertisements for Complainant’s products.
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 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.
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 Panel finds that Complainant has rights in the CENTURA HEALTH mark based on registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <mycenturahealth.us> domain name uses the entire CENTURA HEALTH mark and simply adds the generic word “my” and the “.us” ccTLD. The addition of a generic word and a ccTLD fails to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See 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).); see also CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) (holding, “The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).”) Accordingly, the Panel finds that Respondent’s <mycenturahealth.us> domain name is confusingly similar to Complainant’s CENTURA HEALTH mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant asserts that Respondent lacks rights and legitimate interests in the <mycenturahealth.us> domain name, as Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the CENTURA HEALTH mark. The WHOIS information identifies “Mary Flores” as the Respondent. Therefore, the Panel finds that Respondent is not commonly known by the <mycenturahealth.us> domain name, and thus has no rights under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.)
Complainant contends that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to disrupt Complainant’s business and confuse consumers into downloading various applications and software. Using a disputed domain name to confuse users into downloading applications and software is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or (iv). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”) Complainant screenshots showing advertisements for various applications and software that appear to be “sponsored” by Centura. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <mycenturahealth.us> domain name in bad faith by diverting users to its website for commercially gain. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iv). See ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion. Therefore the Panel finds that a likelihood of confusion exists, that Respondent is attempting to commercially benefit from Complainant’s mark, and that Complainant has rights that predate any rights of the Respondent, all of which constitutes bad faith under Policy ¶ 4(b)(iv).”)
Complainant asserts that Respondent had actual knowledge of Complainant's rights in the CENTURA HEALTH mark when it registered the <mycenturahealth.us>, due to the references on the Respondent’s website to Complainant’s actual website, and Complainant’s use of the CENTURA HEALTH mark since 1996. The Panel agrees and finds bad faith per 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mycenturahealth.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 9, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page