Kadlec Regional Medical Center v. Cvetkov Aleksey Urevich
Claim Number: FA2307002052718
Complainant is Kadlec Regional Medical Center (“Complainant”), represented by Russell C. Pangborn, Washington, USA. Respondent is Cvetkov Aleksey Urevich (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kadlecmed.org>, (‘the Domain Name’) registered with Regional Network Information Center, JSC dba RU-CENTER.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on July 11, 2023; Forum received payment on July 11, 2023.
On July 12, 2023, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to Forum that the <kadlecmed.org> Domain Name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER 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 July 18, 2023, Forum served the Complaint and all Annexes, including a Russian and English Written Notice of the Complaint, setting a deadline of August 7, 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@kadlecmed.org. Also on July 18, 2023, the Russian and English 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 August 8, 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.
Preliminary Issue: Language of Proceedings
The web site attached to the Domain Name is entirely in English. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant is the owner of the trade mark KADLEC, registered, inter alia in the USA for medical services with first use recorded as 1956. The Complainant was the previous owner of the Domain Name and owns kadlecmed.com and kadlecmed.net.
The Respondent acquired the Domain Name in 2022 following an incorrect transfer of the Domain Name to him during a UDRP proceeding which was decided in the favour of the Complainant against a former Russian respondent who was offering competing medical services and the site still offers medical services competing with the Complainant. The website is clearly intended to reach an English speaking audience.
The Domain Name consists of the Complainant’s KADLEC trade mark, the generic abbreviation ‘med’ and the gTLD .org and the Domain Name is confusingly similar to the mark of the Complainant.
Respondent is not commonly known by the Domain Name and has no permission from the Complainant to use the Complainant’s mark. To use the Complainant’s mark to offer competing medical services is confusing and cannot be bona fide use or a legitimate fair use and the use of a small disclaimer at the bottom of a web page is not effective to prevent such confusion.
The diversion of customers using the Complainant’s trade mark to offer competing medical services is causing confusion on the Internet for commercial gain. The Respondent is clearly aware of the Complainant and its rights as it refers to the Complainant in the disclaimer on the web site attached to the Domain Name. The Complainant is concerned about possible offering of dangerous drugs on this web site.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark KADLEC, registered, inter alia in the USA for medical services with first use recorded as 1956. The Complainant was the previous owner of the Domain Name and owns kadlecmed.com and kadlecmed.net.
The Respondent acquired the Domain Name in 2022 following an incorrect transfer of the Domain Name to him during a UDRP proceeding which was decided in the favour of the Complainant against a former Russian respondent who was offering competing medical services and the site still offers medical services competing with the Complainant. The website is clearly intended to reach an English speaking audience.
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 consist of the Complainant's KADLEC mark (which is registered in USA for medical services with first use recorded as 1956), the descriptive abbreviation ‘med’ and the gTLD .org.
The addition of a generic term and a gTLD 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 and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).) The Panel finds that the addition of the descriptive abbreviation ‘med’ and the gTLD .org does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
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 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).
It is clear from the evidence that the Respondent has pointed the site attached to the Domain Name to a site offering competing medical services which are not connected with the Complainant. The usage of the Complainant’s mark which has a reputation for medical services in relation to similar services not connected with the Complainant is confusing and not fair as the site does not make it clear that there is no connection with the Complainant. A disclaimer at the bottom of a web site is not sufficient to dispel such confusion. As such the use of the Domain Name cannot amount to the bona fide offering of services or a noncommercial legitimate or fair use. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
The Respondent has not answered this Complaint and has not rebutted the prima facie 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 is confusing and disruptive in that visitors to the site attached to the Domain Name might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s mark to offer competing medical services. The reference to the Complainant on the Respondent’s web site in the disclaimer shows that the Respondent is aware of the Complainant, its rights and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating 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 Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
Just exactly how the Respondent managed to get this Domain Name transferred to it incorrectly when it should have gone to the Complainant after a successful UDRP proceeding against a previous respondent that was also using the Domain Name for competing medical services is not clear, but the adoption by the Respondent of the Domain Name and the continued use of the Domain Name for competing medical services is further confirmation that this Domain Name has been registered and is being used in bad faith in full knowledge of the rights of the Complainant.
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 para 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 <kadlecmed.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 9, 2023
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