Carondelet Health v. ZJ c/o Yi Zhang
Claim Number: FA0706001000186
Complainant is Carondelet Health (“Complainant”), represented by Amy
Sokol, of Carondelet Health,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carondelethealth.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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 National Arbitration Forum electronically on
On June 18, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 9, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <carondelethealth.com> domain name is confusingly similar to Complainant’s CH CARONDELET HEALTH mark.
2. Respondent does not have any rights or legitimate interests in the <carondelethealth.com> domain name.
3. Respondent registered and used the <carondelethealth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Carondelet Health, is a not-for-profit provider of health care services, continuously using the mark CARONDELET HEALTH since 1997. In conjunction with these services, Complainant has registered the CH CARONDELET HEALTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,263,473 issued July 20, 1999).
Respondent registered the <carondelethealth.com> domain name on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts rights in the CH CARONDELET HEALTH mark
through registration with the USPTO.
Panels have consistently held that registration of a mark with a
trademark authority sufficiently establishes rights in the mark pursuant to
Policy ¶ 4(a)(i).
Accordingly, the Panel finds Complainant has established rights in the
CH CARONDELET HEALTH mark through its trademark registration. See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum
Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately
demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
The Panel finds Respondent’s <carondelethealth.com> domain name is confusingly similar to
Complainant’s CH CARONDELET HEALTH mark.
Respondent’s domain differs from Complainant’s registered mark CH
CARONDELET HEALTH only by omission of the prefatory initials “CH” and the
addition of the generic top-level domain “.com.” Neither of these modifications is sufficient
to move Respondent’s <carondelethealth.com>
domain name out of the realm of confusing similarity with Complainant’s registered
mark. See Wellness Int’l Network, LTD v.
Apostolics.com, FA 96189 (Nat. Arb. Forum
The Panel concludes that Complainant has met the requirements of Policy ¶ 4(a)(i).
Before the burden shifts to Respondent to demonstrate rights or legitimate interests in the disputed domain name, Complainant must first set forth a prima facie case demonstrating Respondent’s lack thereof. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the respondent has no rights to or legitimate interests in the subject domain name and that once the complainant makes this showing, the burden of production shifts to the respondent to rebut the complainant’s allegations); see also F. Hoffman-La Roche AG v. Tomasso Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”). Satisfied Complainant has met its initial burden, the Panel now turns to consider whether Respondent has proffered any evidence demonstrating rights or legitimate interests in the disputed domain name.
By failing to respond to Complainant’s allegations, the Panel may infer that Respondent holds no rights or legitimate interests in the <carondelethealth.com> domain name and assumes the only motivating factor behind Respondent’s registration of the disputed domain name was knowledge of Complainant’s CH CARONDELET HEALTH mark. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Compañia de Radiocomunicaciones Móviles S.A. v. Bolinhas, D2000-0915 (WIPO Oct. 5, 2000) (finding that because Respondent defaulted and did not demonstrate that it had any rights or legitimate interests, the “Panel assumes that there were no other motives for Respondent having registered the three domain names at issue but Respondent’s actual or most likely knowing of the famous or well known marks MOVICOM and BELL SOUTH”). However, the Panel will nevertheless examine whether evidence in the record indicates Respondent possesses rights or legitimate interests in the <carondelethealth.com> domain name under Policy ¶ 4(c).
Given Respondent’s WHOIS information, there is nothing to
suggest Respondent is commonly known by the <carondelethealth.com> domain name. See
Am. W. Airlines, Inc. v. Paik, FA 206396
(Nat. Arb. Forum
Further, Respondent is using the disputed domain name to
direct Internet users to a page of commercial links, both related and unrelated
to the health care industry in which Complainant operates, presumably for the
purpose of earning click-through fees as users attempt to reach Complainant. Such use by Respondent does not demonstrate a
bona fide offering of goods or
services under Policy ¶ 4(c)(i) or evidence a legitimate noncommercial or fair
use of the <carondelethealth.com>
domain name under Policy ¶ 4(c)(iii). See Computer
Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum
The Panel concludes that Complainant has met the requirements of Policy ¶ 4(a)(ii).
Respondent’s use of the <carondelethealth.com>
domain as a collection of related and unrelated links to Complainant’s CH
CARONDELET HEALTH mark permits the Panel to infer Respondent has engaged in bad
faith registration and use pursuant to Policy ¶ 4(b)(iii) for purposes of
disrupting Complainant’s health services enterprise. See
Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Similarly, considering Respondent’s essentially complete inclusion of Complainant’s CH CARONDELET HEALTH mark, the Panel infers that use of the <carondelethealth.com> domain name to resolve to a series of links both related and unrelated to Complainant’s CH CARONDELET HEALTH mark is an attempt by Respondent to capitalize on the likelihood of confusion and association with Complainant as Internet users navigate through Respondent’s site while attempting to reach Complainant, further evidencing bad faith registration and use under Policy ¶ 4(b)(iv). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Svcs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name resolved to a website that displayed commercial links to the websites of the complainant’s competitors); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has met the requirements of 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 <carondelethealth.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 18, 2007
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