Iowa Health System d/b/a UnityPoint Health v. Jiang Li / 蒋黎 / johnny leed / leed johnny / 深圳金源电器贸易有限公司
Claim Number: FA2102001930871
Complainant is Iowa Health System d/b/a UnityPoint Health (“Complainant”), represented by Alexander J. Urbelis of Blackstone Law Group LLP, New York, USA. Respondent is Jiang Li / 蒋黎 / johnny leed / leed johnny / 深圳金源电器贸易有限公司, China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <myumitypoint.org>, <myunitpoint.org>, <myunitypint.org>, <myunitypoin.org>, <myunitypoiny.org>, <myunitypont.org>, <myunutypoint.org>, <umitypoint.org>, <unitpoint.org>, <unitypoin.org>, <unitypoiny.org>, <unitypoit.org>, <unitypont.org>, <unitypount.org>, and <untypoint.org>, registered with Xin Net Technology Corporation; Dynadot, LLC; NameSilo, 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 4, 2021; the Forum received payment on February 4, 2021.
On February 4, 2021; February 5, 2021; February 6, 2021, Xin Net Technology Corporation; Dynadot, LLC; NameSilo, LLC confirmed by e-mail to the Forum that the <myumitypoint.org>, <myunitpoint.org>, <myunitypint.org>, <myunitypoin.org>, <myunitypoiny.org>, <myunitypont.org>, <myunutypoint.org>, <umitypoint.org>, <unitpoint.org>, <unitypoin.org>, <unitypoiny.org>, <unitypoit.org>, <unitypont.org>, <unitypount.org>, and <untypoint.org> domain names are registered with Xin Net Technology Corporation; Dynadot, LLC; NameSilo, LLC and that Respondent is the current registrant of the names. Xin Net Technology Corporation; Dynadot, LLC; NameSilo, LLC has verified that Respondent is bound by the Xin Net Technology Corporation; Dynadot, LLC; NameSilo, 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 11, 2021, the Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of March 3, 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@myumitypoint.org, postmaster@myunitpoint.org, postmaster@myunitypint.org, postmaster@myunitypoin.org, postmaster@myunitypoiny.org, postmaster@myunitypont.org, postmaster@myunutypoint.org, postmaster@umitypoint.org, postmaster@unitpoint.org, postmaster@unitypoin.org, postmaster@unitypoiny.org, postmaster@unitypoit.org, postmaster@unitypont.org, postmaster@unitypount.org, postmaster@untypoint.org. Also on February 11, 2021, the Chinese Written Notice of the Complaint, notifying respondents of the e-mail addresses served and the deadline for a Response, was transmitted to respondents via post and fax, to all entities and persons listed on respondents’ registration as technical, administrative and billing contacts.
Having received no response from respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On March 8, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 respondents.
Complainant requests that the domain names be transferred from respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
The disputed domain names are not all owned by the one party. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Nevertheless, Complainant has alleged that the domain names are effectively controlled by a single person and/or entity, operating under several aliases. The approach taken by the majority of panelists under the Policy is to allow a single administrative proceeding in respect names not commonly held in the one name if there is reasonable evidence of that claim. Here Complainant relies on the facts that all of the disputes domain names (i) adopt the “.org” gTLD (ii) share similar misspellings of and additions to the trademark, (iii) have the same IP address, internet connectivity host company and name server, and (iv) all resolve to the same website. The Panel considers this to be ample evidence of Complainant’s assertion of a single controlling entity and so allows these proceedings to continue against all of the named respondents, hereinafter referring to them collectively as “Respondent”.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
The Panel notes the Chinese language Registration Agreements. Under Rule 11(a) the language of these proceedings is therefore Chinese. Nevertheless, Complainant requests that the proceedings continue in the English language.
The Panel has discretion under the Rules to allow that request and in the past UDRP panels have taken account of factors which demonstrate a respondent’s proficiency with the English language[i]. Here, the evidence of that proficiency is that the resolving websites carries English language statements and the structure of the disputed domain names which infers an understanding of English language pronunciation and usage. The Panel finds that this is just sufficient evidence to warrant that the proceedings should be in English. Pursuant to Rule 11(a), the Panel determines that the remainder of the proceedings should be conducted in English[ii].
A. Complainant
Complainant asserts trademark rights in UNITYPOINT and alleges that the disputed domain names are confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent registered and used the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides medical care by reference to the trademark UNITYPOINT which is the subject of United States Patent and Trademark Office (“USPTO”) Reg. No. 4,589,201, registered August 19, 2014;
2. the disputed domain names were registered on the following dates:
April 12, 2017: <unitpoint.org>
August 23, 2017: <unitypont.org>, <unitypoin.org>
September 27, 2017: <myunitypont.org>, <myunitypoin.org>, <myunitypint.org> and <myunitpoint.org>
November 22, 2017: <unitypoiny.org>
November 25, 2017: <myumitypoint.org>
October 28, 2018: <untypoint.org> and <unitypoit.org>
March 13, 2019: <myunutypoint.org> and <myunitypoiny.org>
March. 22, 2019: <unitypount.org>
March. 30, 2019: <umitypoint.org>;
3. the domain names all resolve to websites carrying links to competitive medical services and other advertising; and
4. there is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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 based on 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory[iii].
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. Proof of registration of the trademark with a national trademark authority is adequate proof of trademark rights. Here Complainant provides evidence of its USPTO registration for UNITYPOINT and so the Panel finds that Complainant has trademark rights in that term[iv]. For the purposes of comparison, the gTLD, “.org”, can be disregarded[v] and so the trademark is to be compared with the following terms:
unitpoint
unitypont
unitypoin
myunitypont
myunitypoin
myunitypint
myunitpoint
unitypoiny
myumitypoint
untypoint
unitypoit
myunutypoint
myunitypoiny
unitypount and
umitypoint.
The Panel finds that the domain names are all confusingly similar to the trademark, being trivial misspellings of the trademark, with or without addition of the wholly non-distinctive word, “my”[vi]. The Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved, based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[vii].
The publicly available WHOIS information shielded certain information about the underlying domain name holders but in consequence of these proceedings those names were revealed by the Registrar as “蒋黎”, “深圳金源电器贸易有限公司”, or their pinyin or Anglicised counterparts, “Jiang Li”, “leed johnny”, “johnny leed” and “Shenzhen Jinyuan Electric Trading Co., Ltd.” None of those names provides any prima facie evidence that Respondent might be commonly known by any of the disputed domain names. There is no evidence that Respondent has any trademark rights and Complainant states that it has not given Respondent permission to use the trademark for any purpose. As stated, the disputed domain names resolve to websites carrying links to competitive medical services and other advertising. Such use is not considered a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of the domain names under the Policy[viii].
The onus shifts to Respondent to establish a legitimate interest in the domain names. In the absence of a Response, that prima facie case is not met and so Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain names were registered and used in bad faith. Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.
On the evidence, the Panel finds bad faith in all cases under subparagraph (iv) above. The Panel has already found the disputed domain names to be confusingly similar to the trademark. The use of the disputed domain names is for commercial gain in some form or another, most likely by way of referral fees. The Panel finds registration and use of the domain name in bad faith and so finds that Complainant has satisfied the third and final element of the Policy[ix].
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myumitypoint.org>, <myunitpoint.org>, <myunitypint.org>, <myunitypoin.org>, <myunitypoiny.org>, <myunitypont.org>, <myunutypoint.org>, <umitypoint.org>, <unitpoint.org>, <unitypoin.org>, <unitypoiny.org>, <unitypoit.org>, <unitypont.org>, <unitypount.org>, and <untypoint.org> domain names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: March 10, 2021
[i] See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009); see also Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006).
[ii] See, for example, 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; see also Coupang Corp. v. Hyung Jun Lim, Case No. FA1906001847602 (Forum July 20, 2019); CrossFit, Inc. v. Whois Agent, Domain Whois Privacy Prot. Serv. / James Chang, Case No. D2016-1893 (WIPO Nov. 9, 2016).
[iii] See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum Jul. 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.”)
[iv] See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”
[v] See, for example, Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”)
[vi] See, for example, Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) finding confusing similarity where a disputed domain name contains a complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and the top-level domain; see also Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) finding <blankofamerica.com> confusingly similar to complainant’s BANK OF AMERICA mark; Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”); Geisinger Clinic v. Hulmiho Ukolen / Poste restante, FA 1704945 (Forum Jan. 10, 2017) (“Complainant alleges that Respondent’s <geisnger.org> domain name is confusingly similar to the GEISINGER mark because it contains the mark, minus a letter “i,” combined with the gTLD “.org.” The Panel finds the <geisnger.org> domain name confusingly similar to the GEISINGER mark.”); see also BBY Solutions, Inc. v Best Buy Online / M/S Best Buy Online, FA 1620654 (Forum July 2, 2015) (“The addition of the generic word ‘my’… does not prevent a finding that the disputed domain name and mark are identical or confusingly similar.”).
[vii] See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[viii] See, for example, 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 non-commercial 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;
[ix] See, for example, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”).
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