national arbitration forum

 

DECISION

 

UnitedHealth Group Incorporated v. Hong Kong Names LLC.

Claim Number: FA0703000935205

 

PARTIES

Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy M. Kenny, of Fulbright & Jaworski L.L.P., 2100 IDS Center, 80 S. Eighth Street, Minneapolis, MN 55402.  Respondent is Hong Kong Names LLC. (“Respondent”), Room 2890, 14/G Shanghai Investment Building, Hong Kong, HK, II 0000, HK.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <unitedhealthcaronline.com>, registered with Moniker Online Services, Inc.

 

PANEL

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.

 

James A. Carmody, Esq., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on March 9, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 12, 2007.

 

On March 19, 2007, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitedhealthcaronline.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name.  Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On March 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 12, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@unitedhealthcaronline.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On April 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <unitedhealthcaronline.com> domain name is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE mark.

 

2.      Respondent does not have any rights or legitimate interests in the <unitedhealthcaronline.com> domain name.

 

3.      Respondent registered and used the <unitedhealthcaronline.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, UnitedHealth Group Incorporated, consists of a highly diversified family of companies offering health and well-being services, and currently serves over fifty-nine million people in the United States.  Complainant utilizes several registered marks in connection with its offering of health care services, including the UNITEDHEALTHCARE mark, which Complainant registered with the United States Patent and Trademark Office (“USPTO”) on March 4, 2003 (Reg. No. 2,693,943).

 

Respondent registered the <unitedhealthcaronline.com> domain name on January 15, 2004.  Respondent’s disputed domain name resolves to a website that features links to Complainant’s competitors.

 

DISCUSSION

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."

 

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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

 

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant’s federal registration with the USPTO sufficiently establishes Complainant’s rights in the UNITEDHEALTHCARE ONLINE mark pursuant to Policy ¶ 4(a)(i).  See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).

 

The Panel finds that Respondent’s <unitedhealthcaronline.com> domain name is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE mark under Policy ¶ 4(a)(i), as the disputed domain name contains the dominant features of Complainant’s mark, omits the letter “e” in the term “care,” and adds the generic top-level domain “.com.”  See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark); see also Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . .").

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant initially must establish that Respondent lacks any rights or legitimate interests with respect to the <unitedhealthcaronline.com> domain name.  However, once Complainant demonstrates a prima facie case, the burden of proof shifts, and Respondent must prove that it has rights or legitimate interests in the disputed domain name.  See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative.  For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.  Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”). 

 

Complainant asserts that Respondent is not authorized to use Complainant’s UNITEDHEALTHCARE ONLINE mark and that Respondent is not associated with Complainant in any way.  Furthermore, Respondent’s WHOIS information does not suggest that Respondent is commonly known by the <unitedhealthcaronline.com> domain name.  The Panel thus finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question). 

 

Respondent is using the disputed domain name to redirect Internet users to a website that features links to Complainant’s competitors.  Respondent’s use of a domain name that is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE mark to redirect Internet users interested in Complainant’s goods and services to a website that offers goods and services in competition with Complainant is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).  See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). 

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Complainant alleged that Respondent acted in bad faith in registering and using a domain name that is confusingly similar to Complainant’s protected mark.  Respondent is using the <unitedhealthcaronline.com> domain name to redirect Internet users to Respondent’s website that features links to competing goods and services.  The Panel finds that such use constitutes disruption and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

 

Based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to a website offering links to competing goods and services.  Respondent’s domain name incorporating the dominant features of Complainant’s mark may create confusion as to Complainant’s affiliation with, or sponsorship of, the disputed domain name and resulting website.  Thus, Respondent’s use of the <unitedhealthcaronline.com> domain name amounts to bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant’s mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <unitedhealthcaronline.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

James A. Carmody, Esq., Panelist

Dated:  April 26, 2007

 

 

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