Remedy Health Media, LLC v. Dan Great
Claim Number: FA2206002002499
Complainant is Remedy Health Media, LLC (“Complainant”), represented by Robert J. deBrauwere of Pryor Cashman LLP, New York, USA. Respondent is Dan Great (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <remedyhealthmedia.us>, registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2022; the Forum received payment on June 29, 2022.
On June 29, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <remedyhealthmedia.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 30, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 2022 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@remedyhealthmedia.us. Also on June 30, 2022, 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 July 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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
1. Respondent’s <remedyhealthmedia.us> domain name is confusingly similar to Complainant’s REMEDY HEALTH MEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <remedyhealthmedia.us> domain name.
3. Respondent registered and uses the <remedyhealthmedia.us> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Remedy Health Media, LLC, offers a digital health platform and holds a registration for the REMEDY HEALTH MEDIA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,720,423 registered April 14 2015).
Respondent registered the <remedyhealthmedia.us> domain name on May 9, 2022, and uses it conduct a phishing scheme.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 Panel finds that Complainant has rights in the REMEDY HEALTH MEDIA based upon the registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <remedyhealthmedia.us> domain name uses the entire REMEDY HEALTH MEDIA mark and simply adds the “.us” ccTLD. The addition of a ccTLD fails to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015) (finding, “The ccTLD “.us” designation is inconsequential to a Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that Respondent’s <remedyhealthmedia.us> domain name is confusingly similar to Complainant’s REMEDY HEALTH MEDIA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant contends that Respondent lacks rights and legitimate interests in the <remedyhealthmedia.us> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the REMEDY HEALTH MEDIA mark. The WHOIS information for the disputed domain name lists the registrant as “Dan Great.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). 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).
Complainant argues that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use because the disputed domain name resolves to an inactive webpage and Respondent purports to be Complainant through phishing emails. Failing to make an active use of a domain name cannot constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”) Using an email address incorporating a disputed domain name to pass off as an affiliate of the complainant is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Complainant provides emails using the disputed domain name, used to impersonate employees of Complainant. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant also argues that, because Respondent purports to be affiliated with Complainant in order to conduct a fraudulent hiring scheme, Respondent has engaged in phishing and thus demonstrated bad faith registration and use. The Panel agrees and find further bad faith under Policy ¶ 4(a)(iii). See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process).
Complainant also contends that, in light of the fame of Complainant's REMEDY HEALTH MEDIA mark, it is inconceivable that Respondent could have registered the <remedyhealthmedia.us> domain name without knowledge of Complainant's rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name, based on its use to impersonate Complainant’s employees, and finds that this is also evidence of bad faith under Policy ¶ 4(a)(iii). See 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 Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <remedyhealthmedia.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 28, 2022
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