Hemostasis and Thrombosis Center of Nevada v. Jesse Clark
Claim Number: FA2112001975749
Complainant is Hemostasis and Thrombosis Center of Nevada (“Complainant”), represented by Lee Fraley of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Jesse Clark (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <htcnv.com> and <sccnv.org>, registered with Network Solutions, LLC or 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2021; the Forum received payment on December 3, 2021.
On December 6, 2021; Dec 07, 2021, Network Solutions, LLC and GoDaddy.com, LLC confirmed by e-mail to the Forum that the <htcnv.com> and <sccnv.org> domain names are registered with Network Solutions, LLC or GoDaddy.com, LLC and that Respondent is the current registrant of the names. Network Solutions, LLC and GoDaddy.com, LLC has verified that Respondent is bound by the Network Solutions, LLC or GoDaddy.com, LLC registration agreements 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 December 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 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@htcnv.com, postmaster@sccnv.org. Also on December 10, 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 January 5, 2022, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the entities which control the domain names at issue are effectively controlled by the same person and/or entity i.e. Jesse Clark, operating under from two locations, one residential and another business related. 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.”
The domain names in the present dispute are similarly constructed as each domain name contains a trademark claimed by Complainant. Each domain ultimately addresses the same web content. The <htcnv.com> domain name addresses a website similar to Complainant’s own website with a section added that links to content at <hemotimes.com>, while <sccnv.org> addresses links to <hemotimes.com> directly. Further, Jesse Clark contacted Complainant offering to sell both domain names to Complainant.
While it is possible that the underlying registrants may or may not differ nominally, they clearly appear to be related to, or controlled by, the same person, persons, or entity. Additionally, Complainant’s contention that the domain names’ registrants be treated as a single entity in the instant proceeding is unopposed. Therefore, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding and they will be referred to as Respondent herein.
A. Complainant
Complainant contends as follows:
Complainant, Hemostasis and Thrombosis Center of Nevada, owns and operates medical centers in the state of Nevada in the United States.
Complainant has common law rights in the HTCNV and SCCNV marks based upon use of the mark in connection with medical services. Complainant also has applied to trademark the HTCNV and SCCNV marks with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <htcnv.com> and <sccnv.org> domain names are identical or confusingly similar to Complainant’s HTCNV and SCCNV marks because they incorporate the HTCNV and SCCNV marks in their entirely and are followed by the generic top-level domains (“gTLD”) “.com” and “.org,” respectively.
Respondent lacks rights and legitimate interests in the <htcnv.com> and <sccnv.org> domain names as it is not commonly known by the at-issue domain names and Complainant has not licensed or authorized Respondent to use the HTCNV and/or SCCNV marks. Additionally, Respondent does not use the domain names for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use because Respondent redirects either the whole domain name or a portion of the webpage under an at-issue domain name to Respondent’s website, which impersonates Complainant. Additionally, Respondent lacks rights and legitimate interest in the at-issue domain names since Respondent offered to sell the domain names to Complainant for $2,914, an excessive amount compared to the actual costs of atypical domain names. Additionally, Respondent’s use of a privacy service is further evidence of a lack of rights or legitimate interests.
Respondent registered or uses the <htcnv.com> and <sccnv.org> domain names in bad faith because Respondent attempts to sell the domain names to Complainant in an amount in excess of the initial cost. Furthermore, Respondent’s websites under the domain names include Complainant’s marks and information in an attempt to pass off as Complainant, even using copies of photographs of personnel and copying various content verbatim, including locations and biographies. Respondent also failed to respond to or comply with Complainant’s cease-and-desist demand. Lastly, Respondent had actual knowledge of Complainant’s rights in the HTCNV and SCCNV marks, based on the fame of the marks, the fact that Respondent passes off as Complainant on the website, and the fact that Respondent contacted Complainant directly about selling the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the HTCNV and SCCNV marks.
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 HTCNV and SCCNV.
Respondent uses the at-issue domain names to pass itself off as Complainant to misdirect internet users to Respondent’s own website. Respondent also attempted to sell the at-issue domain name 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 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”).
It is well settled that a complainant need not have registered its trademark to proceed under the Policy. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Here, Complainant presents sufficient evidence in its unopposed papers to show that Complainant’s HTCNV and SCCNV marks may have acquired secondary meaning and Complainant has common law trademark in such marks pre-dating Respondent’s registration of the at-issue domain names. Therefore, without any opposition from Respondent the Panel finds that Complainant has rights in a mark for the purposes of Policy ¶ 4(a)(i). See Tuxedos By Rose v. Nunez, FA 95248 (Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and on-going and secondary meaning was established). Furthermore the circumstance of this case as discussed elsewhere herein indicate that Respondent was intent on trading off the goodwill inherent in Complainant’s HTCNV and SCCNV marks. Respondent thereby implies by its actions that it believed Complainant to have colorable trademark rights in the two relevant marks.
Respondent’s <htcnv.com> and <sccnv.org> domain names are each identical or confusingly similar to Complainant’s HTCNV or SCCNV marks because the domain names differs from Complainant’s trademark only by addition of the top-level domain names “.com” and “.org”. See Abt Elecs., Inc. v. Ricks, FA 904239 (Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
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).
Respondent lacks both rights and legitimate interests in respect of each 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 either at‑issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for the at-issue domain names does not identify either domain names by a name that is suggestive of one of the at-issue domain names and the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by either at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by either <htcnv.com> and <sccnv.org> for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <htcnv.com> and <sccnv.org> domain names each ultimately redirect internet users to content under the control of Respondent. In furtherance of impersonating Complainant, Respondent copies and displays Complainant’s trademark and other proprietary material as if Complainant sponsors one of the websites addressed by the confusingly similar domain names. Respondent thereby uses at-issue domain names to pass itself off as Complainant to exploit internet traffic intended for Complainant. Respondent’s actions indicates that neither at-issue domain name promotes a bona fide offering of goods or services nor legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Likewise, Respondent’s offer to sell the domain names to Complainant for an amount in excess of their cost also is not indicative of a bona fide offering of goods or services nor legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”).
Given the forgoing and absent any contrary evidence of record, Complainant satisfies its initial burden and conclusively shows Respondent’s lack of rights and legitimate interests in the at-issue domain names under Policy ¶ 4(a)(ii).
The domain names were each registered and used in bad faith. As discussed below without limitation circumstance are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the confusingly similar <htcnv.com> and <sccnv.org> domain names to pass itself off as Complainant. Respondent’s <htcnv.com> addresses a website mimicking Complainant’s official website including displaying Complainant’s trademarks, photographs and other content lifted from Complainant’s official website. Respondent’s <sccnv.org> domain redirects traffic to a website that appears to be controlled by the Respondent. Using the confusingly similar domain names in such manner is disruptive to Complainant’s business and falsely indicates that there is a sanctioned relationship between Complainant and Respondent when there is no such relationship. Such use of the two domain names demonstrates Respondent’s bad faith concerning each domain name pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website).
Next, Respondent attempted to sell the at-issue domain names to Complainant for an amount in excess of their cost. Respondent’s excessive demand for the confusingly similar domain names shows Respondent’s bad faith under 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).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the HTCNV and SCCNV mark when it registered <htcnv.com> and <sccnv.org> as domain names. Respondent’s actual knowledge is evident from Complainant’s notoriety in commerce; from Respondent’s use of the domain names to pass itself off as Complainant and redirect internet users to its own website; and from Respondent’s offer to sell the domain names to Complainant. Respondent’s registration of the at-issue confusingly similar domain names with knowledge of Complainant’s trademark rights therein shows Respondent’s bad faith registration and use 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); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <htcnv.com> and <sccnv.org> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco. Panelist
Dated: January 6, 2022
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