Hanger Inc. v. leed johnny
Claim Number: FA2110001967429
Complainant is Hanger Inc. (“Complainant”), represented by Matthew D. Witsman of Foley & Lardner LLP, District of Columbia, USA. Respondent is leed johnny (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hangerclinc.com>, registered with DNSPod, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2021; the Forum received payment on October 4, 2021.
On October 5, 2021, DNSPod, Inc. confirmed by e-mail to the Forum that the <hangerclinc.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. 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 October 8, 2021, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of October 28, 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@hangerclinc.com. Also on October 8, 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 November 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been presented by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. Therefore, after considering the circumstance of the present case and recognizing that the time and expense of proceeding in Chinese will impose an unfair burden upon Complainant, the Panel finds that this proceeding should be conducted in English.
A. Complainant
Complainant contends as follows:
Complainant provides prosthetic and orthotic services under its HANGER CLINIC trademark.
Complainant has rights in the HANGER CLINIC mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <hangerclinc.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates a slightly misspelled version of the mark and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <hangerclinc.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its HANGER CLINIC mark in the domain name. Respondent does not use the at-issue domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts parked, competing, pay-per-click links on the disputed domain name’s resolving website.
Respondent registered and uses the <hangerclinc.com> domain name in bad faith. Respondent attracts internet users for commercial gain by hosting parked pay-per-click links on the at-issue domain name’s website. Respondent registered the at-issue domain name with knowledge of Complainant’s rights in the HANGER CLINIC mark. Respondent inactively holds and typosquats with the disputed domain name. Respondent used a privacy service to shield its identity on WHOIS.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the HANGER CLINIC mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the HANGER CLINIC trademark.
Respondent uses the at-issue domain names to host pay-per-click links.
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”).
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration of its HANGER CLINIC mark establishes Complainant’s rights in such mark for the purposes of 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)).
The at-issue domain name contain Complainant’s HANGER CLINIC trademark less its spaces and less its “i” between the mark’s “n” and “c.” The domain name concludes with the top level domain name “.com.” The differences between Respondent’s <hangerclinc.com> domain name and Complainant’s trademark are insufficient to distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <hangerclinc.com> domain name is confusingly similar to Complainant’s HANGER CLINIC trademark. See Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately identifies the at-issue domain name’s registrant as “leed johnny” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <hangerclinc.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <hangerclinc.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Warner Bros. Entertainment Inc. v. José Gallardo, FA 1712001763166 (Forum Jan. 20, 2018) (“Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <hogwartsmystery.com> domain name, and that Complainant has licensed or otherwise authorized Respondent to use the HOGWARTS mark for any reason. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “José Gallardo,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii).”).
Respondent uses the confusingly similar <hangerclinc.com> domain name to address a webpage displaying pay-per-click links to third-parties some of which apparently compete with Complainant. Respondent’s use of the confusingly similar <hangerclinc.com> domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(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.”); see also, Expedia, Inc. v. Compaid, FA 520654 (Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <hangerclinc.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar <hangerclinc.com> domain name to display third party pay-per-click hyperlinks. Doing so shows Respondent’s bad faith registration and use of the at-issue domain name 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, AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent is also engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse a misspelled trademark laden domain name with the target trademark and/or a domain name legitimately used by the mark holder. Here, in creating the at-issue domain name Respondent removes the last “i” from Complainant’s HANGER CLINIC trademark and uses the resulting string to form a confusingly similar domain name which not only contains a misspelling of Complainant’s mark but also closely resembles Complainant’s active <hangerclinic.com> domain name. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii).).
Finally, Respondent registered <hangerclinc.com> knowing that Complainant had trademark rights in the HANGER CLINIC mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark; from Respondent’s incorporation of an overtly mistyped version of Complainant’s mark into the <hangerclinc.com> domain name; and from Respondent’s use of the domain name to display links that compete with Complainant’s medical services. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <hangerclinc.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hangerclinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 4, 2021
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