MedImpact Healthcare Systems, Inc. v. Yang Zhi Chao / Zhi Chao Yang
Claim Number: FA2206002002640
Complainant is MedImpact Healthcare Systems, Inc. (“Complainant”), represented by Yuo-Fong C. Amato of Gordon & Rees, LLP, California, USA. Respondent is Yang Zhi Chao / Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com>, registered with eName Technology Co., Ltd.; Chengdu West Dimension Digital Technology Co., Ltd..
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 June 30, 2022; the Forum received payment on June 30, 2022. The Complaint was received in both Chinese and English.
On June 30, 2022, eName Technology Co., Ltd.; Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names are registered with eName Technology Co., Ltd.; Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the names. eName Technology Co., Ltd.; Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., Ltd.; Chengdu West Dimension Digital Technology Co., Ltd. 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 July 5, 2022, the Forum served the Chinese language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of July 25, 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@mymedimpact.com, postmaster@medimpaxt.com, postmaster@medimpacr.com. Also on July 5, 2022, 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 August 1, 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: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the Respondent is conversant and proficient in the English language. Therefore, after considering the circumstance of the present case including the fact that Respondent has failed to object to going forward in English, the Panel concludes that the instant proceeding should be conducted in English.
A. Complainant
Complainant contends as follows:
Complainant, MedImpact Healthcare Systems, Inc., offers healthcare solutions.
Complainant has rights in the MEDIMPACT mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names are identical or confusingly similar to Complainant’s MEDIMPACT mark as they incorporate the mark in its entirety while either adding the generic word “my” or misspelling the mark, and then appending the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names as Respondent is not commonly known by the domain names, nor is Respondent authorized to use the MEDIMPACT mark. Further, Respondent does not use the at-issue domain names for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use by hosting third-party links, unrelated to Complainant’s business. Additionally, Respondent engages in typosquatting.
Respondent registered the <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names in bad faith. Respondent engages in a pattern of bad faith. Further, Respondent attempts to attract users for commercial gain, hosting third-party commercial links. Finally, Respondent engages in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the MEDIMPACT trademark.
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 MEDIMPACT trademark.
Respondent uses the at-issue domain names to address a webpage that promotes pay-per-click type hyperlinks.
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 names are each confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its MEDIMPACT trademark. Any relevant national trademark registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names each incorporate a variant of Complainant MEDIMPACT trademark. One domain name prefixes “my” to Complainant’s trademark while the others contain an overt misspelling of Complainant’s MEDIMPACT mark. Each at-issue domain name concludes with the domain top-level domain name “.com.” The differences between Respondent’s domain names and Complainant’s trademark are insufficient to distinguish either <mymedimpact.com>, <medimpaxt.com>, or <medimpacr.com>from MEDIMPACT for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com>domain names are each confusingly similar to Complainant’s MEDIMPACT trademark. See MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”).
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 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 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 names identifies the domain names’ registrant as “Yang Zhi Chao / Zhi Chao Yang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by any of the at-issue domain names. The Panel therefore concludes that Respondent is not commonly known by <mymedimpact.com>, <medimpaxt.com>, or <medimpacr.com> for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent uses the confusingly similar <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names to address a webpage displaying what appear to be pay-per-click links to services related or similar to services offered by Complainant under its MEDIMPACT mark. The webpage shows links promoting healthcare, pharmacy, medical billing goods, and other such links. Respondent’s use of the confusingly similar domain names 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) regarding any of the at-issue domain names. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain names under Policy ¶ 4(a)(ii).
Respondent’s <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names were each 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 regarding each of the domain names.
First, Respondent has suffered numerous adverse UDRP decisions as a respondent. Respondent’s repeated cybersquatting evidences a pattern of domain name abuse and suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Next, as mentioned above regarding rights and legitimate interests Respondent uses its confusingly similar <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names to address a webpage(s) displaying hyperlinks related to services similar to those services provided by Complainant. Doing so shows Respondent’s bad faith registration and use of the at-issue domain names under Policy ¶¶ 4(b)(iii) and (iv). See Zynex Medical, Inc. v. New Ventures Services, Corp, FA 1788042 (Forum July 2, 2018) (“The resolving webpage [] appears to display [competing] links such as “Electrical Stimulation” and “Physical Therapy Software.” Accordingly, the Panel agrees that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).”).
Moreover, Respondent engages 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 as seems to be the intent here will otherwise confuse a misspelled trademark laden domain name with its target trademark. Here, two of the at-issue domain names incorporate obviously misspelled versions of Complainant’s MEDIMPACT trademark. Respondent’s typosquatting in itself is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use).
Finally, Respondent registered <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> knowing that Complainant had trademark rights in the MEDIMPACT mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s evident targeting of Complainant’s MEDIMPACT trademark via typosquatting. Respondent’s prior knowledge of Complainant's MEDIMPACT trademark further indicates that Respondent registered and used the <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names 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 <mymedimpact.com>, <medimpaxt.com>, and <medimpacr.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 3, 2022
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