eHealthInsurance Services, Inc. v. ehealthinsurance.com
Claim Number: FA0708001065509
Complainant is eHealthInsurance Services, Inc. (“Complainant”), represented by Francine
Hanson, of Wilson Sonsini Goodrich & Rosati,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwehealth.com>, registered with Nameview, 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 September 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 24, 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 email@example.com 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 <wwwehealth.com> domain name is confusingly similar to Complainant’s EHEALTH mark.
2. Respondent does not have any rights or legitimate interests in the <wwwehealth.com> domain name.
3. Respondent registered and used the <wwwehealth.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant offers online health insurance services to individuals, families, and small businesses. In 2004, Complainant purchased the <ehealth.com> domain name. Complainant conducts its business entirely through its <ehealth.com> and <ehealthinsurance.com> domain names. Complainant and its predecessor-in-interest have continuously used the EHEALTH mark in connection with health related services since as early as 1997. Complainant currently holds a federal trademark registration for the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,180,628 issued Aug. 11, 1998).
Respondent’s <wwwehealth.com> domain name was
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 has sufficiently established its rights in the
EHEALTH mark through registration with the USPTO. See
Respondent’s <wwwehealth.com> domain name
includes the generic top-level domain (“gTLD”) “.com” and the prefix
"www" before the EHEALTH mark.
It is well established that a gTLD is irrelevant in a Policy ¶ 4(a)(i)
anaylsis. Moreover, the prefix “www”
does not distinguish the disputed domain name from Complainant’s mark, because
it the dominant features of Complainant’s mark are retained, and the prefix
“www” is associated with a common typing error of Internet users which
eliminates the period between “www” and the domain name. As a result, the Panel finds pursuant to
Policy ¶ 4(a)(i) that Respondent’s disputed domain name is confusingly similar
to Complainant’s mark. See Isleworth Land Co. v. Lost in
Space, SA, FA 117330 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case that Respondent has no
rights or legitimate interests in the disputed domain name. See TotalFinaElf E&P USA, Inc. v. Farnes,
FA 117028 (Nat. Arb. Forum
failed to submit a Response to the Complaint.
The Panel finds accordingly that Respondent has no rights or legitimate
interests in the disputed domain name, but will still consider all the
available evidence in light of the Policy ¶ 4(c) factors. See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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 Broadcom Corp. v. Ibecom PLC, FA
361190 (Nat. Arb. Forum
Respondent’s WHOIS information currently lists its name as “wwwehealth.com.” The Panel finds that this on its own, without any additional information from Respondent and in light of the nature and confusing similarity of the disputed domain name with Complainant’s mark, is not enough to establish that Respondent is commonly known by the <wwwehealth.com> domain name pursuant to Policy ¶ 4(c)(ii). See Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Respondent’s <wwwehealth.com> domain name is a typosquatted version of Complainant’s EHEALTH mark. Moreover, the disputed domain name resolves to a links driven web page featuring links to third-party websites. Consequently, the Panel finds that Respondent is not using the <wwwehealth.com> domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to third-party websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <wwwehealth.com> domain name is a typosquatted version of Complainant’s EHEALTH mark. The Panel finds this to be evidence that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith).
Respondent’s <wwwehealth.com> domain name is
confusingly similar to Complainant’s EHEALTH mark and resolves to a web page
that features sponsored links to third-party websites, some of which offer
services in direct competition with those offered under Complainant’s mark. The Panel finds this to be additional
evidence of Respondent’s bad faith registration and use of the disputed domain
name pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum
Respondent’s typosquatted variation of Complainant’s domain name will create a likelihood of confusion for Internet users seeking the websites under Complainant’s EHEALTH mark. Moreover, the <wwwehealth.com> domain name features sponsored links to third-party websites, which presumably financially benefits Respondent. The Panel finds this to be further evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Canadian Tire Corp. v. domain adm’r firstname.lastname@example.org 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
The Panel concludes that Complainant has satisfied 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 <wwwehealth.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 10, 2007
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