UnitedHealth Group Incorporated v.
Claim Number: FA0706001011743
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski, 2100 IDS
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unitedhealthcaredental.com>, registered with Enom, 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 National Arbitration Forum electronically on
On June 26, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 16, 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 <unitedhealthcaredental.com> domain name is identical to Complainant’s UNITEDHEALTHCARE DENTAL mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcaredental.com> domain name.
3. Respondent registered and used the <unitedhealthcaredental.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Inc., is a national leader
in the health and well-being industry, offering a varied range of health care
services. Complainant has conducted
business under the UNITEDHEALTHCARE mark for over 20 years and has used the
UNITEDHEALTHCARE DENTAL mark in connection with dental health care services
since 2002. Complainant holds a federal
trademark registration with the United States Patent and Trademark Office
(“USPTO”) for the UNITEDHEALTHCARE DENTAL mark (Reg. No. 2,754,197 issued
Respondent registered its <unitedhealthcaredental.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.
In order to satisfy Policy ¶ 4(a)(i), Complainant must show that it has rights in the UNITEDHEALTHCARE DENTAL mark. The Panel finds that Complainant’s registration of the mark with the USPTO sufficiently establishes its rights in the mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
domain name is identical to Complainant’s UNITEDHEALTHCARE DENTAL mark. The
disputed domain name incorporates the entire mark, simply deleting the space
between the two words and adding the generic top-level domain (“gTLD”) “.com”
to the mark. Previous panels have held,
and this Panel so holds, that the addition of a gTLD is irrelevant for the
purposes of Policy ¶ 4(a)(i), as a top-level domain is required of all domain
names. Thus, the Panel finds that the <unitedhealthcaredental.com> domain
name is identical to Complainant’s UNITEDHEALTHCARE DENTAL mark pursuant to
Policy ¶ 4(a)(i).
See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov.
16, 2000) (finding that the domain name <wembleystadium.net> is identical
to the WEMBLEY STADIUM mark); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Under the Policy, Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <unitedhealthcaredental.com> domain name. Once Complainant makes a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests with respect to the disputed domain name. In the instant case, the Panel finds that Complainant has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to respond to the Complaint implies that Respondent lacks rights or legitimate interests in the <unitedhealthcaredental.com> domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). Nevertheless, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s WHOIS information does not indicate that Respondent is commonly known by the <unitedhealthcaredental.com> domain name, and there is nothing further in the record to suggest that Respondent is known by the disputed domain name. In addition, Complainant has not authorized Respondent to use its UNITEDHEALTHCARE DENTAL mark for any purpose. In Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000), the panel found no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question). Accordingly, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
Respondent’s <unitedhealthcaredental.com> domain name resolves to a website displaying links to third-party websites offering health care services in direct competition with Complainant. The Panel presumes that Respondent receives click-through fees when Internet users click on these competing links. Such use constitutes 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). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s website at the <unitedhealthcaredental.com> domain name features links to
Complainant’s direct competitors. This
qualifies as a disruption of Complainant’s business pursuant to Policy ¶ 4(b)(iii) and is evidence that Respondent registered and is
using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Respondent is using the <unitedhealthcaredental.com> domain name, which is identical to Complainant’s UNITEDHEALTHCARE DENTAL mark, to redirect Internet users seeking Complainant’s services to Respondent’s website. Respondent presumably accrues click-through fees when users click on the links displayed on the website. Respondent is therefore capitalizing on the likelihood that Internet users will confuse the website at the disputed domain name as being affiliated with Complainant. This is further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unitedhealthcaredental.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 1, 2007
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