UnitedHealth Group
Incorporated v. Mohammed Aenul Hassan
Claim Number: FA0703000947081
PARTIES
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski, 2100 IDS
Center,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com>,
registered with Lead Networks Domains Pvt. Ltd.
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.
Clive Elliott as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
electronically on March 27, 2007; the
National Arbitration Forum received a hard copy of the Complaint on March 28, 2007.
On April 2, 2007, Lead Networks Domains Pvt. Ltd. confirmed by
e-mail to the National Arbitration Forum that the <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com>
domain names are registered with Lead Networks
Domains Pvt. Ltd. and that Respondent is the current registrant of the
name. Lead
Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 April 6, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of April 26, 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@wwwunitedhealthcareonline.com and postmaster@myunitedhealthcare.com by e-mail.
A timely Response was received and determined to be complete on April 26, 2007.
An Additional Submission was received on April 30, 2007.
On May 4, 2007, pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Clive Elliott as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant trades in the health
and well-being industry and is comprised of a diversified group of companies
offering services in the health and well-being industry. Complainant serves approximately
59 million Americans and has revenues exceeding $45 billion
annually. It is ranked 37th on Fortune
magazine’s 2006 Fortune 500 list of
Complainant commenced use of the UNITEDHEALTHCARE
trademark in about 1984 and use of the UNITEDHEALTH GROUP mark in about 1999 in
connection with providing health care services. Since that time, it has used the UNITEDHEALTH
GROUP and UNITEDHEALTHCARE marks in commerce in the
Complainant has offered health and insurance related
services in
Complainant also owns other marks that incorporate its “UNITEDHEALTH” formative, including UNITEDHEALTH PASSPORT, UNITEDHEALTHCARE ONLINE, UNITEDHEALTHCARE DENTAL, UNITEDHEALTHCARE VISION, UNITEDHEALTH BASICS, UNITEDHEALTH PREMIUM, UNITEDHEALTH ACCESS, and UNITEDHEALTH RX (collectively “the UNITEDHEALTH marks”).
Complainant is the proprietor of a number of
Complainant, through its subsidiaries, markets its products and services under the UNITEDHEALTH marks through its websites at <unitedhealthgroup.com> and <unitedhealthcare.com>.
On this basis, Complainant asserts that the UNITEDHEALTH marks are distinctive and well known, and that the addition of the common generic terms “my” and “www” to the UNITEDHEALTH marks in the domain names does not negate the confusing similarity between the domain names and the UNITEDHEALTH marks under the Policy
Complainant points out that when a searcher reaches the <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com> sites, and clicks on many of the links, he or she is connected immediately to the website of one of UnitedHealth’s competitors or is immediately provided with another list of links which lead to UnitedHealth’s competitors. On this basis it is alleged that Respondent is intentionally using the UNITEDHEALTH marks in its domain names to attract Internet searchers for commercial gain. It is further submitted that use of the domain names in this manner is use in bad faith.
Finally, Complainant asserts that Respondent’s constructive and actual knowledge of UnitedHealth’s rights in the UNITEDHEALTH marks at the time of the registration of the <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com> domain names demonstrate its bad faith in registering the names.
B. Respondent
In response,
Respondent asserts that Complainant has filed the Complaint so that he succumbs
to the illegal and unreasonable demands of Complainant. On this basis it is contended that Complainant
has not approached the Forum with clean hands.
Respondent denies each and every allegation, submission and contention
in the Complaint and puts Complainant to strict proof thereof and states that
he reserves the right to go before a Judicial Forum of competent Jurisdiction
for independent resolution of the dispute.
Respondent asserts that the domains were suggested to him by the
registrar’s website in the various combinations which were made available and
that he registered the domains as per the suggestions made on this website. Respondent states that he went to the website
of the registrar and typed the name he wanted. As the domain was not available he was given a
list of names to choose from. One of the
names was <myunitedhealthcare.com>
and he registered these domain names. Respondent goes on to state that while he
intended to do so, his proposed website was never completed.
It is asserted that Respondent is in the business of providing health
care services on a local level at Mumbai India and hence there is no way that
he can benefit from the cliental of Complainant. He asserts that he has been using these names
since 2006 for e-mails to and from their clients and that this is legitimate.
He argues that because he operates a small business in
C. Additional Submissions
In its additional submissions Complainant submits that Respondent alleges that he “is in the business” of providing health care on the “local level” in Mumbai, India and is using the domain names to send e-mails back and forth to his “customers” but notes that he presents no evidence to support this claim.
In response to Respondent’s allegation that he is not using the domain names in connection with a website Complainant notes that both domain names <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com> currently lead to search directory parking pages sponsored by Sedo, a domain parking service that generates revenues for domain name holders through a “pay-per-click” system.
Complainant submits that Respondent has provided no evidence to prove that he has rights or legitimate interests in the domain names and that there is no evidence that Respondent uses these domain names for anything but collection of revenue through “click-thru” advertising services.
Complainant points out that the domain name <wwwunitedhealthcareonline.com> was originally registered in the name of the registrant, “Nick M.” a/k/a “Watch My Domain” (aka “Naresh Malik”) and asserts that “Nick M.” a/k/a “Watch My Domain” a/k/a “Naresh Malik” is a known serial typosquatter, relying on the decision La Quinta Worldwide L.L.C. v. Watch My Domain, D2006-0623 (WIPO August 8, 2006) where the said person was characterized as such.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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;
(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.
Complainant has submitted evidence of numerous
trademark registrations with the United States Patent and Trademark Office
(“USPTO”). Included in this evidence,
Complainant owns trademark registrations in the UNITED HEALTHCARE and UNITED
HEALTHCARE ONLINE marks. The Panel had no
difficulty in finding that Complainant has established rights in the marks for
purposes of Policy ¶ 4(a)(i). See
Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007)
(finding that the complainant had sufficiently established rights in the SKUNK
WORKS mark through its registration with the USPTO); see also Metro. Life
Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding
rights in the METLIFE mark as a result of its registration with the
Complainant contends that
Respondent’s <wwwunitedhealthcareonline.com> domain name is confusingly similar to
Complainant’s mark under Policy ¶ 4(a)(i).
Complainant contends that Respondent’s domain name features
Complainant’s entire UNITED HEALTHCARE ONLINE mark, omits the spaces between
the “united,” “healthcare” and “online” terms, adds the generic top-level
domain (“gTLD”) “.com,” and includes the letters “www.” The Panel finds that such minor distinctions
fail to properly distinguish Respondent’s domain name from Complainant’s mark
for purposes of Policy ¶ 4(a)(i). See
Additionally, Complainant contends that the <myunitedhealthcare.com> domain name is confusingly similar to the UNITED HEALTHCARE mark as Respondent’s disputed domain name merely eliminates the space between the two terms of Complainant’s mark and adds the generic term “my.” The Panel finds that the addition of a generic term such as “my” is insufficient to differentiate a domain name from a mark under Policy ¶ 4(a)(i). See NIIT Ltd. v. Parthasarathy Venkatram, D2000-0497 (WIPO Aug. 4, 2000) (finding that the “domain name ‘myniit.com,’ which incorporates the word NIIT as a prominent part thereof, is confusingly similar to the Complainant’s trade name and trademark NIIT”); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (finding that the “domain name MYSPORTSCENTER.COM registered by Respondent is confusingly similar to Complainant’s SportsCenter mark”).
Accordingly,
the ground is established.
It is well established that once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant contends that Respondent is using the <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com> domain names to operate a website that features links to various competing commercial websites from which Respondent presumably receives referral fees. The Panel finds that such diversionary use for commercial gain is not 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). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
Furthermore, Complainant contends that Respondent is neither commonly known by the disputed domain names nor licensed to register domain names featuring Complainant’s mark. Additionally, Respondent’s WHOIS information identifies Respondent as “Mohammed Aenul Hassan.” The Panel may find that Respondent is not commonly known by the disputed domain names for purposes of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name). Both the exact identity and location of Respondent are not clear and on the basis of the evidence before the Panel it finds that Respondent is not commonly known by the disputed domain names for the purposes of this enquiry.
On this
basis, the ground is made out.
Complainant contends that
Respondent is using the disputed domain names to operate a website that provides
links to various competing health services in competition with Complainant’s
business. The Panel infers, on the basis
of the submissions and evidence before it, that Respondent is likely to be
deriving a profit, whether direct or indirect, from such use through the
collection of referral fees for each redirected Internet user. The Panel is of the view that such use is
likely to disrupt Complainant’s business and is evidence of bad faith
registration and use pursuant to 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).
Furthermore, Complainant contends that Respondent’s manner of use of the <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com> domain names is likely to lead to confusion among Internet users as to Complainant’s sponsorship of, or affiliation with, the resulting websites. The Panel concludes that such use is indicative of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Finally, Complainant contends that
Respondent had actual or constructive knowledge of Complainant’s rights in its
well-known marks due to Complainant’s registration with the USPTO. Complainant is also entitled to rely on
Complainant’s wider business interests and activities in
Accordingly, this ground is also made out.
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 <wwwunitedhealthcareonline.com> and <myunitedhealthcare.com>
domain names be TRANSFERRED from Respondent to Complainant.
Clive Elliott, Panelist
Dated: May 17, 2007
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