Centura Health Corporation v. Alma Bioscience
Claim Number: FA2208002008134
Complainant is Centura Health Corporation (“Complainant”), represented by Chad T. Nitta of Kutak Rock LLP, US. Respondent is Alma Bioscience (“Respondent”), US.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <centurahealthathome.org>, registered with Google LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 11, 2022. The Forum received payment on August 11, 2022.
On August 11, 2022, Google LLC confirmed by e-mail to the Forum that the <centurahealthathome.org> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC 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 August 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 6, 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@centurahealthathome.org. Also on August 15, 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 September 12, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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, Centura Health Corporation, operates as a non-profit, Christian healthcare system based in Englewood, Colorado. Its mission is to extend the healing ministry of Christ by caring for those who are ill and by nurturing the health of the people in its communities. Its core values include compassion, respect, integrity, spirituality, stewardship, imagination, and excellence.
Complainant has rights in the CENTURA HEALTH mark through registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <centurahealthathome.org> domain name is confusingly similar to Complainant’s CENTURA HEALTH mark.
Respondent lacks rights and legitimate interests in the <centurahealthathome.org> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed to Respondent any rights in the CENTURA HEALTH mark. Respondent uses Complainant’s mark in the domain name in order misleadingly to divert Internet users to Respondent’s own website. Respondent uses the domain name to disrupt Complainant’s legitimate business and confuse consumers by using a non-existent business address in Denver, Colorado in order to appear in the search results returned to consumers searching for Complainant, a Colorado-based healthcare service provider. Accordingly, Respondent does not use the domain name for any bona fide offering of goods or services, nor for any legitimate non-commercial or fair use.
Respondent registered and uses the <centurahealthathome.org> domain name in bad faith. Respondent attempts to attract users for commercial gain, using the confusingly similar nature of the domain name in order to attract users with a false impression of association with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the CENTURA HEALTH mark through registrations with the USPTO (e.g.¸ Reg. No. 2,131,776, registered January 27, 1998). The Panel finds Respondent’s <centurahealthathome.org> domain name to be confusingly similar to Complainant’s CENTURA HEALTH mark as it incorporates Complainant’s mark in its entirety and adds the generic term “at home”, which is insufficient to distinguish the domain name from the merk, and the inconsequential generic top-level domain (“gTLD”) “.org”, which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <centurahealthathome.org> domain name was registered on October 10, 2003. It resolves to a website prominently displaying the CENTURA HEALTH mark and offering medical and other healthcare related information. A link displayed on the homepage resolves to a Facebook page under the name “alive magazine” - a health and wellness magazine. Similarly, the “Instagram” and “Pinterest” links resolve to the respective Instagram and Pinterest pages for “alive magazine.”
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <centurahealthathome.org> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s CENTURA HEALTH mark when Respondent registered the <centurahealthathome.org> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <centurahealthathome.org> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 12, 2022
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