Iowa Health System d/b/a UnityPoint Health v. Debra Benner
Claim Number: FA2110001970789
Complainant is Iowa Health System d/b/a UnityPoint Health (“Complainant”), represented by Justin B. Perri of Blackstone Law Group LLP, New York, USA. Respondent is Debra Benner (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unitypoint-health.org>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 27, 2021; the Forum received payment on October 27, 2021.
On October 27, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <unitypoint-health.org> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 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@unitypoint-health.org. Also on October 28, 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 November 22, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it operates a network of hospitals, clinics and home care services. Complainant is the nation’s 13th largest non-profit health system and the fourth largest nondenominational health system in America, providing care to both metropolitan and rural communities across Iowa, western Illinois, and southern Wisconsin. Through relationships with more than 315 physician clinics, 21 regional and 19 community network hospitals, and home care services throughout its 9 regions, Complainant is one of the nation's most integrated health systems. Headquartered in West Des Moines, Iowa, Complainant’s entities employ more than 30,000 employees who are dedicated to making it easier for people to live well. Complainant’s total revenue is approximately $4.1 billion. Complainant has rights in the UNITYPOINT HEALTH mark based on its registration of the mark in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its UNITYPOINT HEALTH mark as it merely adds a hyphen between the terms of the mark and the “.org” generic top level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed Respondent use of the UNITYPOINT HEALTH mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name resolves to pay-per-click advertisements, some of which offer competing services; further, Respondent uses the disputed domain name to pass off as Complainant in emails in furtherance of a phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant in emails in furtherance of a phishing scheme. Additionally, the disputed domain name resolves to a webpage with pay-per-click advertisements. The disputed domain name also constitutes typosquatting. Furthermore, Respondent used a privacy service to conceal its identity. Finally, Respondent had actual knowledge of Complainant’s rights in the UNITYPOINT HEALTH mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark UNITYPOINT HEALTH and uses it to operate a network of hospitals, clinics and home care services.
Complainant’s rights in its mark date back to 2014.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent uses the disputed domain name to pass off as Complainant to conduct an email phishing scheme; further, the resolving website hosts links to third party websites some of which compete with 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 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 name merely adds a hyphen between the terms of Complainant’s UNITY POINT mark and the “.org” generic top level domain (“gTLD”). The addition of a hyphen and a gTLD to a mark may not differentiate the disputed domain name from the mark under Policy ¶ 4(a)(i). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”). Thus, the Panel finds that the <unitypoint-health.org> domain name is confusingly similar to Complainant’s UNITYPOINT HEALTH mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. 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 under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies “Debra Benner” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
The resolving website displays competing pay-per-click advertisements. Further, Respondent uses the disputed domain name in furtherance of an email phishing scheme. Use of a disputed domain name to host pay-per-click advertisements or in furtherance of a phishing scheme does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make 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). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. 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 name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in emails in furtherance of a phishing scheme. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to pass off as a complainant in emails to phish for users information is considered evidence of bad faith registration and use. See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Therefore, the Panel finds bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv).
Further, the resolving website displays competing pay-per-click advertisements. Resolving a disputed domain name to pay-per-click hyperlinks can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv) on this ground also.
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the phishing emails displays Complainant’s mark and web site. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unitypoint-health.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 22, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page