Availity, L.L.C. v. Zhichao Yang
Claim Number: FA2010001917854
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, United States. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availitry.com>, registered with Moniker Online Services 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 October 21, 2020; the Forum received payment on October 21, 2020.
On October 23, 2020, Moniker Online Services LLC confirmed by e-mail to the Forum that the <availitry.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services 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 October 26, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@availitry.com. Also on October 26, 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 November 19, 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 <availitry.com> domain name is confusingly similar to Complainant’s AVAILITY mark.
2. Respondent does not have any rights or legitimate interests in the <availitry.com> domain name.
3. Respondent registered and uses the <availitry.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant’s provides insurance services and holds a registration for the AVAILITY mark with the United States Patent and Trademark Office (“USPTO”). (Reg. 2,667,172, registered Dec. 24, 2002).
Respondent registered the <availitry.com> domain name on Sept. 26, 2019, and uses it to host competing and unrelated pay-per-click links.
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 rights in the AVAILITY mark under Policy ¶ 4(a)(i) through its registrations with the USPTO. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <availitry.com> domain nameuses the AVAILITY mark, and adds the letter “r” and the “.com” gTLD. Under Policy ¶ 4(a)(i), adding a single letter and a gTLD is insufficient in differentiating a disputed domain name from the mark it incorporates. See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”); see also Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Therefore, the Panel finds that Respondent’s <availitry.com> domain name is confusingly similar to Complainant’s AVAILITY 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 argues that Respondent has no rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the <availitry.com> domain name. Complainant has not authorized or licensed Respondent to use its AVAILITY mark. The WHOIS of record identifies Respondent is “Zhichao Yang.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sep. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”).
Complainant argues that Respondent does not use the <availitry.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to host commercial hyperlinks. Using a disputed domain name to host competing or unrelated pay-per-click links is not a bona fide offering of goods or services or a legitimate noncommercial or fair under Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides screenshots of the disputed domain name’s resolving website, which features hyperlinks for various health related products, as well as unrelated or single word links. 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has engaged in a pattern of bad faith registration of use. Under Policy ¶ 4(b)(ii), a pattern of bad faith registration and use may be demonstrated by past UDRP cases where Panels transferred a disputed domain name from the same Respondent. See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”). Complainant provides a citation of a case it successfully brought against Respondent for the domain name <availituy.com>. See Availity, L.L.C. v. Yang, FA 2009001912008 (Forum Oct. 19, 2020). Therefore, the Panel agrees and find Respondent has engaged in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Complainant argues that Respondent registered and uses the <availitry.com> domain name in bad faith by displaying commercial hyperlinks at the disputed domain name’s resolving webpage. Hosting competing or unrelated links on a disputed domain name’s resolving website constitutes bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”); see also Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain names for bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).
Complainant also argues that the <availitry.com> domain name is a typosquatted version of Complainant’s mark. Where a respondent registers a disputed domain name that incorporates a slightly misspelled version of a Complainant’s mark to divert internet users who mistype to the disputed domain name’s resolving website, bad faith typosquatting may be found under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Complainant argues that by adding a single “r” to its AVAILITY mark in the disputed domain name, Respondent has engaged in typosquatting. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii).
Complainant contends that Respondent registered the <availitry.com> domain name in bad faith with actual knowledge of Complainant’s rights in the AVAILITY mark at the time of registration. The Panel agrees, noting that Respondent previously registered a domain name containing the AVAILITY mark and was ordered to transfer it to Complainant. The Panel thus finds further bad faith under Policy ¶ 4(a)(iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“. . .the Panel infers Respondent’s actual knowledge here based on Respondent’s complete use of the PERIFACTS mark in the <perifacts.com> domain name to promote links related to the field of obstetrics, where Complainant’s mark is used.”).
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 <availitry.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 20, 2020
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