Ascension Health Alliance v. 郭丹
Claim Number: FA2107001956109
Complainant is Ascension Health Alliance (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is 郭丹 (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ascensionseniorcare.com>, registered with Domain International Services Limited.
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 July 21, 2021; the Forum received payment on July 21, 2021. The Complaint was received in English.
On July 22, 2021, Domain International Services Limited confirmed by e-mail to the Forum that the <ascensionseniorcare.com> domain name is registered with Domain International Services Limited and that Respondent is the current registrant of the name. Domain International Services Limited has verified that Respondent is bound by the Domain International Services 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 July 23, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of August 12, 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@ascensionseniorcare.com. Also on July 23, 2021, the Chinese and English language 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 August 16, 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 Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
The Panel notes the Chinese language Registration Agreement. Under Rule 11(a) the language of these proceedings is therefore Chinese. Nevertheless, Complainant requests that the proceedings continue in the English language and under the Rules the Panel has discretion to allow that request.
In considering similar requests, UDRP panels have taken account of factors which indicate a respondent’s proficiency with the English language[i]. Here, Complainant submits that Respondent is capable of understanding English based only on the fact that the domain name is a combination of three English words where the phrase “senior care” relates to the services provided under the trademark. Albeit that this, alone, barely proves a proficiency in English the preponderance of UDRP decisions have treated this argument as enough and so the Panel determines that the proceedings should continue in English.
A. Complainant
Complainant asserts trademark rights in ASCENSION. Complainant holds a national registration for that trademark. Complainant submits that the domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name 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 is a not-for-profit organization operating in the United States health system and offering services under the trademark, ASCENSION;
2. the trademark is registered with the United States Patent and Trademark Office (“USPTO”) as Reg. No. 5,874,495, from October 1, 2019;
3. the disputed domain name was registered on March 9, 2021 and redirects internet users to a website having no connection with Complainant; and
4. there is no association between the parties and Complainant has not authorized Respondent to use its trademark or 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.
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.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights[ii]. Complainant therefore has rights since it provides proof of its registration of the trademark with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain name with the trademark, the gTLD “.com” can be disregarded as trivial. Thereafter, the disputed domain name merely adds the phrase “senior care”, wholly non-distinctive in the context of Complainant’s business under the trademark. The Panel finds that the domain name is confusingly similar to the trademark for the purposes of this aspect of the Policy[iii].
The Panel therefore 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 name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[iv].
The name of the underlying domain name holder, as disclosed by the Registrar, is “郭丹 / 四川省甘孜藏族自治州吴家梁村”. The Panel’s research using Google Translate shows the PinYin equivalents as the personal name, “Guo Dan”, and the address, “Wujialiang Village, Ganzi Tibetan Autonomous Prefecture, Sichuan Province” which does not provide any indication that Respondent might be commonly known by the domain name. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties and Respondent has no authority to use the trademark.
Complainant provides evidence that the Chinese language resolving website, www.vita-xl.com, reads “Register to get bonus” and, “Sign up and get 100% gift for the first deposit.” Using a complainant’s mark in a domain name to attract Internet users to a site unrelated to that complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy and so the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name[v].
The onus shifts to Respondent and, in the absence of a Response, 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 name was registered in bad faith 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.’
The Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) above. The Panel has already found the disputed domain name to be confusingly similar to the trademark. The Panel accepts Complainant’s assertion that the resolving website exists for commercial gain. In terms of the Policy, the Panel finds that Respondent has intentionally used the disputed domain name to attract, for commercial gain, internet users to its website or some other online location by creating a likelihood of confusion with as to the source, sponsorship, affiliation, or endorsement of that website by implying to internet users that they will reach Complainant’s website[vi].
Panel finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ascensionseniorcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: August 20, 2021
[i] See, for example, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009); Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006).
[ii] See, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).
[iii] See, for example, Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).); Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark).
[iv] See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[v] See, for example, See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); Haru Holding Corporation v. AI Matusita, FA 1679867 (Forum Aug. 11, 2016) holding that “unrelated use [of a disputed domain name] by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use”.
[vi] See, for example, Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
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