Centura Health Corporation v. Super Privacy Service LTD c/o Dynadot
Claim Number: FA2002001881963
Complainant is Centura Health Corporation (“Complainant”), represented by Chad T. Nitta of Kutak Rock LLP, United States. Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <centurahealthphysiciangroup.org>, registered with Dynadot, 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 the Forum electronically on February 4, 2020; the Forum received payment on February 5, 2020.
On February 6, 2020, Dynadot, LLC confirmed by e-mail to the Forum that the <centurahealthphysiciangroup.org> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 February 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 2, 2020 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@centurahealthphysiciangroup.org. Also on February 10, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On March 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 <centurahealthphysiciangroup.org> domain name is confusingly similar to Complainant’s CENTURA HEALTH mark.
2. Respondent does not have any rights or legitimate interests in the <centurahealthphysiciangroup.org> domain name.
3. Respondent registered and uses the <centurahealthphysiciangroup.org> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, Centura Health Corp., is a Christian healthcare system that holds a registration for the CENTURA HEALTH mark with the United States Patent and Trademark Office (Reg. No. 2,919,071 registered on Jan. 18, 2005).
Respondent registered the <centurahealthphysiciangroup.org> domain name on December 7, 2019, and uses it for a website displaying adult-oriented material.
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 Panel finds that Complainant has established rights in the CENTURA HEALTH mark for the purposes of Policy ¶ 4(a)(i) based upon its registration of the mark with the USTPO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <centurahealthphysiciangroup.org> domain name uses Complainant’s CENTURA HEALTH mark, adds the descriptive term “physician group” and a gTLD. These changes do not distinguish a domain name from a mark for purposes of Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Respondent’s <centurahealthphysiciangroup.org> 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 contends that Respondent lacks rights or legitimate interests in the <centurahealthphysiciangroup.org> domain name, as Respondent is not commonly known by the disputed domain name. Respondent is not a licensee or authorized to use Complainant’s CENTURA HEALTH mark. The WHOIS information for the disputed domain name lists the registrant as “Super Privacy Service LTD c/o DynaDot.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant also argues that Respondent fails to use the <centurahealthphysiciangroup.org> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent uses the disputed domain name to display adult-oriented material. The Panel finds that this use 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)(i) or (iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited-, FA 1603444 (Forum Mar. 19, 2015) (holding that, generally, a disputed domain which hosts adult-oriented material is not a bona fide offering of goods or services or a legitimate noncommercial or fair use); see also Tumblr, Inc. v. Srivathsan GK, FA1409001582401 (Forum Oct. 30, 2014) (“Consequently, the Panel finds that Respondent’s use of the disputed domain name for adult-oriented images also does not provide a bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <centurahealthphysiciangroup.org> domain name in bad faith, and has 54 previous UDRP decisions against it since 2018. Past adverse UDRP decisions against a respondent may evince bad faith pursuant to Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(ii).
Complainant also argues that Respondent registered and uses the <centurahealthphysiciangroup.org> domain name in bad faith as Respondent attempts to attract Internet users to its own webpage for commercial gain, disrupting Complainant’s business. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)).
Complainant further argues that Respondent registered and uses the <centurahealthphysiciangroup.org> domain name in bad faith because Respondent uses it to display adult-oriented material. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Respondent’s use of the disputed domain name to feature adult-oriented advertisements is further evidence of bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <centurahealthphysiciangroup.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 5, 2020
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