UnitedHealth Group Incorporated v. Bill Wichert
Claim Number: FA0706001011756
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski L.L.P., 2100
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unitedhealthcareinsurance.com>, registered with Enom, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On June 20, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 10, 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 <unitedhealthcareinsurance.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcareinsurance.com> domain name.
3. Respondent registered and used the <unitedhealthcareinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, is a
diversified family of companies providing health-care and well-being
services. Servicing approximately 70
million Americans, Complainant exceeds over $71.5 billion in revenue annually
and was ranked 21st in Fortune
magazine’s 2007 Fortune 500 list of
Respondent registered the <unitedhealthcareinsurance.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.
Panels have consistently recognized that registration with a
trademark authority is sufficient to demonstrate rights in a mark under Policy
¶ 4(a)(i). Based on Complainant’s
registration of the UNITED HEALTHCARE mark with the USPTO, Complainant has
established rights in the mark. 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
domain name is comprised of Complainant’s UNITED HEALTHCARE mark, the common
term “insurance,” and the generic top-level domain “.com.” The Panel agrees with Complainant’s
assertions that the disputed domain name is confusingly similar to
Complainant’s UNITED HEALTHCARE mark.
First, the generic top-level domain “.com” is irrelevant in determining
whether a domain name is confusingly similar to a mark under Policy ¶ 4(a)(i)
since a top-level domain is an essential element for domain name registry. See
Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO
Based on the foregoing, the Panel finds Policy ¶ 4(a)(i) has been satisfied.
Before Respondent is required to establish rights or legitimate interests in the <unitedhealthcareinsurance.com> domain name, Complainant must first set forth a prima facie case demonstrating Respondent’s lack thereof. See 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.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Satisfied Complainant has crossed this initial threshold, the Panel will now consider whether Respondent has provided any evidence demonstrating rights or legitimate interests in the <unitedhealthcareinsurance.com> domain name.
In light of Respondent’s failure to respond and contest any of the allegations set forth by Complainant, the Panel infers Respondent does not possess rights or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). The Panel, however, will now examine whether the records holds any evidence suggesting Respondent has rights or legitimate interests in the <unitedhealthcareinsurance.com> domain name under Policy ¶ 4(c).
In considering whether Respondent is commonly known by the <unitedhealthcareinsurance.com> domain name, the Panel notes Respondent’s WHOIS information suggests Respondent is commonly known as “Bill Wichert.” Additionally, nothing in the record suggests Respondent is licensed or authorized by Complainant to register domain names featuring Complainant’s UNITED HEALTHCARE mark. As a result, the Panel finds Respondent is not commonly known by the <unitedhealthcareinsurance.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
Moreover, Respondent’s <unitedhealthcareinsurance.com> domain name resolves to a list of third-party links, including those of Complainant’s competitors, as well as unrelated links. This does not constitute a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use as set forth in Policy ¶ 4(c)(iii). See 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); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).
Thus, the Panel concludes Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that the strong resemblance between
domain name and Complainant’s UNITED HEALTHCARE mark and the direction of
Internet users seeking Complainant to other third-party websites, including
those offering similar and competing services, via the disputed domain name,
evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iii) through
an intent to disrupt Complainant’s business.
See EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., FA 94385
(Nat. Arb. Forum
Similarly, the Panel infers Respondent’s unauthorized use of Complainant’s UNITED HEALTHCARE mark in the <unitedhealthcareinsurance.com> domain name to maintain a list of links to other health-care service providers and unrelated third parties is an attempt by Respondent to commercially benefit from the confusing similarity between the domain name at issue and Complainant’s mark, profiting off of the goodwill surrounding Complainant’s mark through the likelihood Internet users will believe Respondent to be a bona fide source of Complainant’s products. This further suggests to the Panel that Respondent registered and is using the <unitedhealthcareinsurance.com> domain name in bad faith under Policy ¶ 4(b)(iv). See 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); see also 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).
Accordingly, the Panel determines the requirements of Policy ¶ 4(a)(iii) have 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 <unitedhealthcareinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 30, 2007
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