Hanger Inc. v. Christopher Dillon / 1985 / Stephanie McDonald / 2004
Claim Number: FA2108001959327
Complainant is Hanger Inc. (“Complainant”), represented by Matthew D. Witsman of Foley & Lardner LLP, District of Columbia, USA. Respondent is Christopher Dillon / 1985 / Stephanie McDonald / 2004 (“Respondent”), Texas, USA, and Idaho, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hangerclinicdirect.com>, <shophangerclinic.com>, and <hangerclinicboise.com>, registered with GoDaddy.com, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 12, 2021; the Forum received payment on August 12, 2021.
On August 13, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hangerclinicdirect.com>, <shophangerclinic.com>, and <hangerclinicboise.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 August 17, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 7, 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@hangerclinicdirect.com, postmaster@shophangerclinic.com, postmaster@hangerclinicboise.com. Also on August 17, 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 sufficient response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. The registrant of the domain name <hangerclinicboise.com> did however send emails to the Forum. For the reasons given below, the Complaint regarding this domain name will be dismissed. Therefore, the Panel will not further discuss the emails from the registrant of this domain name.
On September 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Complainant alleges that each of the disputed domain names incorporates the identical HANGER marks in conjunction with other descriptive terms; the <hangerclinicdirect.com> and <shophangerclinic.com> domain names were each created on the same date, January 17, 2019; each of the disputed domain names are maintained by the same Registrar; each of the websites associated with the disputed domain names are parked by the Registrar; each of the disputed domain names host identical sponsored advertisement links; and each of the disputed domain names are for sale for the exact same dollar amount.
Based on the evidence provided by the Complainant, the Panel finds that the <hangerclinicdirect.com> and <shophangerclinic.com> domain names were each created on the same date, January 17, 2019; each of the disputed domain names are maintained by the same Registrar; each of the websites associated with the disputed domain names are parked by the Registrar; the <hangerclinicboise.com> domain name was registered on March 15, 2015; the <hangerclinicdirect.com> and <shophangerclinic.com> domain names resolve to web pages that display identical sponsored advertisement links; the <hangerclinicboise.com> domain name resolves to a website that displays different advertising links. None of the disputed domain names are actually offered for sale, rather, a link is displayed to a broker that purports to be able to assist in negotiating an acquisition of the domain name.
Given that the <hangerclinicboise.com> was not registered on the same date, and resolves to a website that is different from that of the other two disputed domain names, the Panel finds that Complainant has not presented sufficient evidence demonstrating that all the registrants are jointly controlled.
Consequently, under the Forum’s Supplemental Rule 4(c), the Panel finds that the <hangerclinicdirect.com> and <shophangerclinic.com> are commonly owned and, as a UDRP decision can proceed against only one Respondent, elects to proceed against Respondent “Christopher Dillon/1985”.
The Panel dismisses the Complaint in relation to the <hangerclinicboise.com> domain name.
The remainder of this decision relates only to the domain names <hangerclinicdirect.com> and <shophangerclinic.com>, collectively referred to as the “disputed domain names”.
A. Complainant
Complainant is a provider of orthotics and prosthetics and related products and services. It is the world’s premier provider of orthotics and prosthetics and products and services related thereto, including custom fitting and rehabilitative health services, and offers advanced clinical programs related to the use of its products. Complainant has nearly 5,000 employees at 800 locations across the United States, making it the largest domestic provider of healthcare services for enabling human mobility through the application of orthotic and prosthetic care. Through its provision of orthotics and prosthetics and the related patient care, Complainant has become well-known within the healthcare industry. Complainant has registered the marks HANGER and HANGER CLINIC in the United States in, respectively, 2012 and 2018.
Complainant alleges that the disputed domain names are confusingly similar to its HANGER and HANGER CLINIC marks because they wholly incorporate the marks and merely add the generic terms “direct”, “shop”, and the “.com” generic top-level domain (“gTLD”)
According to Complainant, Respondent does not have any rights or legitimate interests in the disputed domain names because it is not commonly known by the disputed domain names. Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because the disputed domain names resolve to parked web pages with sponsored advertisements not related to Complainant.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith because Respondent promotes sponsored links on the resolving websites likely for commercial gain. The disputed domain names are also offered for sale. Further, Respondent used a privacy service at time of registration. Respondent acted with actual knowledge of Complainant’s rights in the HANGER and HANGER CLINIC marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks HANGER and HANGER CLINIC and uses it to provide orthotics and prosthetics and related products and services.
Complainant’s rights in its marks date back to, respectively, 2012 and 2108.
The disputed domain names were registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving websites display advertising links for products and services not related to Complainant.
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 sufficient 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 disputed domain names incorporate Complainant’s HANGER CLINIC mark in its entirety, merely adding the generic terms “direct” or “shop” and the “.com” generic top-level domain (“gTLD”). A domain name may be found to be identical or confusingly similar, under Policy ¶ 4(a)(i), despite the addition of descriptive terms to a domain name. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain names: evidence of a respondent not being commonly known by a domain name, under Policy ¶ 4(c)(ii), may be found where the identifying WHOIS information is unrelated to a domain name. Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name.”). Here, the registrant of the disputed domain names is “Christopher Dillon”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The resolving websites display offering pay-per-click advertisements unrelated to Complainant. A domain name that promotes pay-per-click advertisements unrelated to a complainant’s business may be evidence of a domain name not being used in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Therefore, the Panel finds that Respondent is not using the disputed domain names to make a bona fide offering of goods or services nor for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent offers the disputed domain names for sale for a price in excess of out-of-pocket costs. However, the evidence presented by Complainant does not show an actual sales offer. Rather, it shows an offer to get in touch with a broker who purports to be able to facilitate a purchase. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation, and it will not further discuss it.
Respondent (who did not reply) has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the resolving websites promote pay-per-click advertisements unrelated to Complainant. Use of a domain name to promote pay-per-click advertisements unrelated to a complainant may be evidence of bad faith under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy for the domain names <hangerclinicdirect.com> and <shophangerclinic.com>, the Panel concludes that relief shall be GRANTED for these domain names.
Accordingly, it is Ordered that the <hangerclinicdirect.com>, and <shophangerclinic.com> domain names be TRANSFERRED from Respondent to Complainant.
Finding that the domain name <hangerclinicboise.com> is not registered by the same registrant, the Panel concludes that the Complainant shall be DISMISSED for this domain name.
Accordingly, it is Ordered that the <hangerclinicboise.com> domain name REMAIN WITH its registrant.
Richard Hill, Panelist
Dated: September 14, 2021
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