Availity, L.L.C. v. Meng Dan Qian
Claim Number: FA2012001924298
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availityy.com>, registered with Cloud Yuqu LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 9, 2020; the Forum received payment on December 9, 2020.
On December 10, 2020, Cloud Yuqu LLC confirmed by e-mail to the Forum that the <availityy.com> domain name is registered with Cloud Yuqu LLC and that Respondent is the current registrant of the name. Cloud Yuqu LLC has verified that Respondent is bound by the Cloud Yuqu 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 December 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2021 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@availityy.com. Also, on December 14, 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 January 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Complainant alleged that because Complainant is capable of understanding English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. The Panel notes that the website associated with the disputed domain name is in English with English-language links to English-language sites related to Complainant’s business. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). The Panel here finds that the proceeding should be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Availity LLC, operates an information network in the field of healthcare. Complainant has rights in the AVAILITY mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). Respondent’s <availityy.com> domain name is confusingly similar to Complainant’s mark since it consists of the AVAILITY mark, simply adding the letter “y” to the mark and adds the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <availityy.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s AVAILITY mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent hosts hyperlinks to websites operating in the same field as Complainant.
Respondent registered and uses the <availityy.com> domain name in bad faith. Respondent attracts users for commercial gain by displaying related third-party hyperlinks. Further, Respondent’s typosquatting behavior is evidence of bad faith. Respondent also used a privacy service to conceal its identity and failed to respond to Complainant’s communications. Finally, Respondent had actual knowledge of Complainant’s rights in the AVAILITY mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Availity, L.L.C. (“Complainant”), of Jacksonville, FL, USA. Complainant is the owner of the mark AVAILITY, which it has continuously used since at least as early 2002 in connection with its provision of software platforms and business services related to health care, medical insurance and relevant benefits, as well as claims processing and data analysis.
Respondent is Meng Dan Qian (“Respondent”), of Jiangsu, China. Respondent’s registrar’s address is listed as Sichuan, China. The Panel notes that the disputed domain name was registered on or about April 5, 2020.
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”).
Complainant asserts rights in the AVAILITY mark based upon registration with the USPTO. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). The Panel here finds that Complainant has rights in the AVAILITY mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <availityy.com> domain name is confusingly similar to Complainant’s mark since it consists of the AVAILITY mark, simply adding the letter “y” and the “.com” gTLD. Addition or removal of individual letters and addition of a gTLD do not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). 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’ . . . ”). The Panel here finds that the disputed domain name is identical and/or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions regarding Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <availityy.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s AVAILITY mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 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.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record lists the registrant as “Meng Dan Qian” and Complainant contends that it did not authorize Respondent’s use of the AVAILITY mark. The Panel here finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to use the <availityy.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead hosts hyperlinks to websites operating in the same field as Complainant. Use of a disputed domain name to host commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ ¶ 4(c)(i) or (iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third-party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Complainant provides screenshots or Respondent’s website and notes that it contains hyperlinks to websites of other entities in health insurance and related fields, including competitors of Complainant. The Panel here finds that this use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ ¶ 4(c)(i) or (iii).
Respondent raises no contentions regarding Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and uses the <availityy.com> domain name in bad faith based upon Respondent’s display of related third-party hyperlinks at the website associated with the disputed domain. Use of a confusingly similar domain name to display third-party commercial hyperlinks is evidence of bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 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)”). The Panel recalls that Complainant provides screenshots of the webpage resolving at the disputed domain. Complainant additionally notes that the links present at the disputed domain redirect to websites in the health insurance field, including websites of Complainant’s direct competitors. The Panel here finds bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent’s typosquatting behavior is evidence of bad faith. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that Respondent’s registration of a domain name that adds a single letter to the AVAILITY mark and differs by only one letter from Complainant’s legitimate <availity.com> domain name constitutes typosquatting. The Panel here finds that Respondent’s typosquatting equates to bad faith registration and use under Policy ¶ 4(a)(iii).
Finally, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the AVAILITY mark when it registered the <availityy.com> domain name. Actual knowledge of a complainant’s rights in a mark evinces bad faith per Policy ¶ 4(a)(iii) and may be shown by the entirety of circumstances surrounding registration and use of a disputed domain name. 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.”); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Complainant argues that Respondent could not have come up with the disputed domain name out of thin air and must have based the domain name on the AVAILITY mark. The Panel here finds that Respondent had and thus engaged in bad faith registration and use per Policy ¶ 4(a)(iii).
Respondent raises no contentions regarding Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the applicable ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <availityy.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 20, 2021
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