PrescriberPoint Corp. v. Fyusion Inc / Ryan Floyd
Claim Number: FA2305002042926
Complainant is PrescriberPoint Corp. ("Complainant"), represented by Jennifer M. Hetu of Bodman PLC, Michigan, USA. Respondent is Fyusion Inc / Ryan Floyd ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <prescriberpoint.work>, registered with NameSilo, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on May 3, 2023; Forum received payment on May 3, 2023.
On May 3, 2023, NameSilo, LLC confirmed by email to Forum that the <prescriberpoint.work> 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 May 5, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@prescriberpoint.work. Also on May 5, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 May 30, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 uses the PRESCRIBERPOINT mark in connection with a digital ecosystem that healthcare providers with access to resources and support for prescribing medications for patients. Complainant has used the mark in commerce since 2022 and owns a United States trademark registration for PRESCRIBERPOINT in standard character form that issued in March 2023.
The disputed domain name <prescriberpoint.work> was registered in April 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name resolves to what appears to be a registrar-generated parking page containing pay-per-click links. Complainant states that the domain name is being used for a fraudulent phishing scheme, and provides evidence of email messages that have been sent to prospective job applicants soliciting sensitive personal and financial information. Complainant states that Respondent is not known by the domain name and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <prescriberpoint.work> is confusingly similar to its PRESCRIBERPOINT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <prescriberpoint.work> corresponds to Complainant's registered PRESCRIBERPOINT trademark, with the ".work" top-level domain appended thereto. The addition of a top-level domain is normally disregarded for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Signify Health, LLC v. Sasha Still, D2023-1208 (WIPO May 3, 2023) (finding <signifyhealth.work> confusingly similar to SIGNIFY HEALTH); Conduent, Inc. v. Nayeem Akbar, FA 1870846 (Forum Dec. 6, 2019) (finding <conduent.work> identical or confusingly similar to CONDUENT). The Panel considers the disputed domain name to be identical or confusingly similar to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to impersonate Complainant in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Signify Health, LLC v. Sasha Still, supra (finding lack of rights or interests in similar circumstances); Skillshare, Inc. v. Saif Deraiya / Rhtutorials, FA 2036258 (Forum Apr. 26, 2023) (same); Echo Global Logistics Inc. v. Elijah Brown, FA 2028481 (Forum Feb. 20, 2023) (same); Conduent, Inc. v. Nayeem Akbar, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service and possibly false underlying registration data to register a domain name corresponding to Complainant's registered mark, and is using the domain name for a fraudulent phishing scheme. Such circumstances are indicative of bad faith registration and use under the Policy. See, e.g., Carahsoft Technology Corp. v. Chadwick Spencer, FA 2040715 (Forum May 19, 2023) (finding bad faith registration and use in similar circumstances); Signify Health, LLC v. Sasha Still, supra (finding lack of rights or interests in similar circumstances); Skillshare, Inc. v. Saif Deraiya / Rhtutorials, supra (same); Echo Global Logistics Inc. v. Elijah Brown, supra (same); Conduent, Inc. v. Nayeem Akbar, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <prescriberpoint.work> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 30, 2023
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