UnitedHealth Group Incorporated v. Kim Sun Woo
Claim Number: FA0706001012066
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski L.L.P., 2100
IDS Center,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <unitedhealthcareoline.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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 20, 2007.
On June 20, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitedhealthcareoline.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June
25, 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 postmaster@unitedhealthcareoline.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
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 <unitedhealthcareoline.com> domain name is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcareoline.com> domain name.
3. Respondent registered and used the <unitedhealthcareoline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Inc., is a well-known leader
in the health and well-being industry, serving approximately 70 million
customers across
Respondent registered the <unitedhealthcareoline.com> domain name on September 14, 2005. The disputed domain name resolves to a website featuring links to various third-party websites, some of which offer health and well-being services in direct competition with Complainant.
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.
Under Policy ¶ 4(a)(i), Complainant must show that it has rights in the UNITEDHEALTHCARE ONLINE mark. The Panel finds that Complainant’s registration of the mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD 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.").
Respondent’s <unitedhealthcareoline.com>
domain name is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE
mark. The disputed domain name simply
deletes the letter “n” from the word “online” in the mark, which, as previous
panels have found, does not negate any confusing similarity between the mark
and the disputed domain name. Moreover,
the addition of the generic top-level domain “.com” to the disputed domain name
is irrelevant, as a top-level domain is required of all domain names. Thus, the Panel finds that the <unitedhealthcareoline.com> domain
name is confusingly similar to Complainant’s UNITEDHEALTHCARE ONLINE mark
pursuant to Policy ¶ 4(a)(i). See Dow Jones & Co., Inc. v. Powerclick, Inc.,
D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of
errors or changes, such as the addition of a fourth “w” or the omission of
periods or other such “generic” typos do not change respondent’s infringement
on a core trademark held by the complainant); see also State Farm Mut. Auto.
Ins. Co. v. Try Harder &
The Panel thus finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent lacks rights or legitimate interests in the <unitedhealthcareoline.com> domain name. Under Policy ¶ 4(a)(ii), the initial burden is on Complainant to show that Respondent lacks rights or legitimate interests in the disputed domain name. Once Complainant has established a prima facie case, however, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name. In the present case, the Panel finds that Complainant has made a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); 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).
Based on Respondent’s failure to respond to the Complaint, the Panel presumes that Respondent lacks rights or legitimate interests in the <unitedhealthcareoline.com> 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 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). However, the Panel will still examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by
the disputed domain name. Respondent’s
WHOIS information does not indicate, and there is nothing further in the record
to suggest, that Respondent is commonly known by the <unitedhealthcareoline.com> domain name. In addition, Respondent is not authorized or
licensed by Complainant to use its UNITEDHEALTHCARE ONLINE mark for any
purpose. Thus, the Panel finds that
Respondent lacks rights and legitimate interests under 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 Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
Respondent’s <unitedhealthcareoline.com> domain name resolves to a website
displaying links to Complainant’s direct competitors. The Panel presumes that Respondent earns
click-through fees when Internet users click on these links. This does not qualify as a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or 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 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).
The Panel thus finds that Policy ¶
4(a)(ii) has been satisfied.
As indicated above, Respondent’s <unitedhealthcareoline.com> domain name resolves to a website featuring links to Complainant’s direct competitors. Such use constitutes a disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
The Panel presumes that Respondent benefits commercially
from click-through fees when Internet users click on the links featured on the
website that resolves from its <unitedhealthcareoline.com>
domain name. Respondent is thus
capitalizing on the likelihood that Internet users seeking Complainant’s
services will confuse the source of the disputed domain name as being
affiliated with Complainant, when in fact it is not. This further indicates that Respondent
registered and is using the <unitedhealthcareoline.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Amazon.com,
Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain
name at issue in direct competition with Complainant, and giving the impression
of being affiliated with or sponsored by Complainant, this circumstance
qualifies as bad faith registration and use of the domain name pursuant to
Policy ¶ 4(b)(iv).”); see also Am. Univ. v. Cook, FA 208629
(Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that
incorporates another's mark with the intent to deceive Internet users in regard
to the source or affiliation of the domain name is evidence of bad faith.”).
The Panel thus 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 <unitedhealthcareoline.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: July 30, 2007
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