DECISION

 

Laboratory Corporation of America Holdings v. Domain Administrator / Fundacion Privacy Services LTD

Claim Number: FA2102001931836

 

PARTIES

Complainant is Laboratory Corporation of America Holdings (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <labcorprp.com>, registered with Media Elite Holdings Limited.

 

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 11, 2021; the Forum received payment on February 11, 2021.

 

On February 13, 2021, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <labcorprp.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 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@labcorprp.com.  Also on February 15, 2021, 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 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Laboratory Corporation of America Holdings, is a healthcare diagnostics company, providing clinical laboratory services throughout the world. Complainant has rights in the LABCORP mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,000,799, registered Sept. 17, 1996). See Compl. Ex. G. Respondent’s <labcorprp.com> domain name is confusingly similar to Complainant’s LABCORP mark because it includes the entire mark, merely adding the letters “rp” and the “.com” generic top-level domain (“gTLD”).

 

2.    Respondent does not have rights or legitimate interests in the <labcorprp.com> domain name because Respondent is not commonly known by the disputed domain name. 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. Rather, Respondent uses the domain name to host links to third-party sites and to spread malware to users. Further, Respondent offers the domain name for sale.

 

3.    Respondent registered and uses the <labcorprp.com> domain name in bad faith. Respondent offers the disputed domain name for sale at an amount exceeding out-of-pocket costs. Additionally, Respondent leverages Complainant’s notoriety to attract users for commercial gain through the use of third-party links. Further, Respondent uses the disputed domain name to spread malicious software. Finally, Respondent engaged in typosquatting in bad faith.

 

B.   Respondent

1.    Respondent did not submit a response to this proceeding.

 

FINDINGS

1.    Respondent’s <labcorprp.com> domain name is confusingly similar to Complainant’s LABCORP mark.

 

2.    Respondent does not have any rights or legitimate interests in the <labcorprp.com> domain name.

 

3.    Respondent registered or used the <labcorprp.com> domain name in bad faith.

 

DISCUSSION

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”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the LABCORP mark based upon registration with the USPTO. Registration of a mark with a governmental authority such as the USPTO is generally sufficient to establish rights in the mark per Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Complainant provides evidence of registration with the USPTO (e.g., Reg. No. 2,000,799, registered Sept. 17, 1996). See Compl. Ex. G. Thus, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).

 

Complainant argues that Respondent’s <labcorprp.com> domain name is confusingly similar to Complainant’s LABCORP mark because it includes the entire mark, merely adding the letters “rp” and the “.com” gTLD. Addition of letters and a gTLD to a mark is generally insufficient to differentiate a domain name from the mark it incorporates. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”). Therefore, the Panel agrees with Complainant and find Respondent’s domain name to be identical and/or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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”).

 

Complainant argues that Respondent does not have rights or legitimate interests in the <labcorprp.com> domain name because Respondent is not commonly known by the disputed domain name. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin  ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); 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). Here, the WHOIS information of record lists “Domain Administrator / Fundacion Privacy Services LTD” as the registrant of the disputed domain name. See Compl. Ex. A. Thus the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).

 

Complainant also argues that Respondent fails to use the <labcorprp.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead uses the domain name to host links to third-party sites and to spread malware to users. Use of a domain name to display parked hyperlinks and/or disseminate malware is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”). Complainant provides screenshots of the landing pages at the disputed domain, claiming that the landing page is sometimes part of a malware distribution scheme and at other times is a page of parked hyperlinks. See Compl. Ex. I. Therefore, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

Further, Complainant claims that Respondent’s offering of the <labcorprp.com> domain name for sale suggests a lack of rights and legitimate interests in the domain name. Under Policy ¶ 4(a)(ii), offering to sell a disputed domain name may support a finding that a respondent lacks rights and legitimate interests in the disputed domain. See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name). Complainant provides evidence of the disputed domain name being offered for sale for a minimum of $500 USD. See Compl. Ex. J. Thus, the Panel further finds that Respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the <labcorprp.com> domain name in bad faith because Respondent offers the disputed domain name for sale at an amount exceeding out-of-pocket costs. Offering a disputed domain name for sale for more than the costs associated with registration and maintenance may suggest bad faith pursuant to Policy ¶ 4(b)(i). See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs.  The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(i). ”). Complainant provides evidence of the disputed domain name being offered for sale for a minimum of $500 USD. See Compl. Ex. J. The Panel agrees with Complainant and finds bad faith under Policy ¶ 4(b)(i).

 

Complainant also argues that Respondent uses the <labcorprp.com> domain name in bad faith by leveraging Complainant’s notoriety to attract users for commercial gain through the use of third-party links. Under Policy ¶ 4(b)(iv), use of a disputed domain name to display parked hyperlinks may evidence an attempt to attract Internet traffic for commercial gain. See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Complainant provides a screenshot of a page of commercial hyperlinks resolving at the disputed domain. See Compl. Ex. I. The Panel therefore finds bad faith under Policy ¶ 4(b)(iv).

 

Further, Complainant claims that Respondent uses the uses the <labcorprp.com> domain name to spread malicious software. Use of a disputed domain name in connection with the dissemination of malware evidences bad faith under Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant claims that landing pages resolving at the disputed domain are part of a malware distribution scheme. Complainant provides a screenshot of such a page. See Compl. Ex. I. Thus, the Panel agrees that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

Finally, Complainant argues that Respondent’ registration of the <labcorprp.com> domain name constitutes typosquatting in bad faith. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (Forum July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting.  Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”). Complainant claims that Respondent’s addition of the letters “rp” to the end of the LABCORP mark in the disputed domain name constitutes typosquatting. The Panel agrees and further finds bad faith under Policy ¶ 4(a)(iii).

 

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 <labcorprp.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  March 23, 2021