Unitedhealth Group Incorporated v. Unitedhealth Group
Claim Number: FA0801001141068
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <unitedhea1thcare.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on January 30, 2008.
On January 31, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitedhea1thcare.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 February 5, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 25, 2008 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@unitedhea1thcare.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 28, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <unitedhea1thcare.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhea1thcare.com> domain name.
3. Respondent registered and used the <unitedhea1thcare.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, United Health Group, Inc., is a corporation that provides health care services including, but not limited to: health information services, health care cost management services, managed health care services, insurance services, pharmacy and prescription drug services and health care benefit plan administration services. Complainant offers these services under a variety of UNITED HEALTH derivative marks, including the UNITED HEALTHCARE mark. Complainant registered the UNITED HEALTHCARE mark with the United States Patent and Trademark Office (“USPTO”) on April 16, 1996 (Reg. No. 1,967,622). Complainant also has registered numerous UNITED HEALTH derivative marks with the USPTO and multiple other governmental authorities.
Respondent was previously using the <unitedhea1thcare.com> domain name to resolve to a website which mimicked the websites resolving from Complainant’s <uhc.com> and <unitedhealthcare.com> domain names. Respondent offered healthcare and insurance products and services similar to Complainant’s on the website previously resolving from its disputed domain name. Additionally, Respondent’s WHOIS information previously reflected Complainant’s address, telephone and e-mail contact information. After Complainant sent Respondent a cease-and-desist letter, Respondent altered the content resolving from its disputed domain name and its WHOIS information. Respondent’s disputed domain name currently resolves to a website displaying links to health-related websites. Also, Respondent altered its WHOIS contact information by changing the address, however, the telephone and e-mail contact information remains identical to Complainant’s.
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 registered its UNITED HEALTHCARE mark with the
USPTO on April 16, 1996. The Panel finds
this registration is sufficient to establish Complainant’s rights in the UNITED
HEALTHCARE mark pursuant to Policy ¶ 4(a)(i). See
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."); see also
Respondent’s <unitedhea1thcare.com> domain name fully incorporates Complainant’s UNITED HEALTHCARE mark with the mere substitution of the number “1” for the letter “l,” and the incorporation of the generic top-level domain (“gTLD”) “.com”. Thus, the Panel finds Respondent’s <unitedhea1thcare.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark pursuant to Policy ¶ 4(a)(i). See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the disputed domain name. After Complainant presents a prima facie case supporting these allegations, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain name pursuant to Policy 4 ¶ (a)(ii). The Panel finds Complainant has presented a sufficient prima facie case to support its allegations. The Respondent failed to submit a response to these proceedings. Therefore, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel will inspect the record and determine whether Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent’s disputed domain name previously resolved to a
website which graphically mimicked Complainant’s websites and offered
healthcare products and services similar to Complainant’s. The Panel finds
this use was an attempt by Respondent to “pass itself off” as Complainant and
was not a use 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 Am. Int’l Group, Inc. v.
Busby, FA 156251 (Nat. Arb.
Forum May 30, 2003) (finding that the respondent attempts to pass itself off as
the complainant online, which is blatant unauthorized use of the complainant’s
mark and is evidence that the respondent has no rights or legitimate interests
in the disputed domain name); see also
Crow v. LOVEARTH.net, FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither
a bona fide offerings [sic] of goods
or services, nor an example of a legitimate noncommercial or fair use under
Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name, confusingly
similar to a registered mark, attempts to profit by passing itself off as
Complainant . . . .”).
Respondent previously offered
healthcare products and services which directly competed with Complainant’s
business on the website resolving from the disputed domain name. In addition, after Complainant sent
Respondent a cease-and-desist letter, Respondent altered the content of the
website resolving from the disputed domain name to display health information
and links to healthcare related websites.
The Panel finds Respondent’s previous and current uses of the disputed
domain name are not uses in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321
(Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s]
SAFLOK mark to market products that compete with Complainant’s goods does not
constitute a bona fide offering of goods and services.”); see also Gardens Alive, Inc. v.
D&S Linx, FA 203126 (Nat. Arb. Forum
Nov. 20, 2003) (finding that the respondent used a domain name for commercial
benefit by diverting Internet users to a website that sold goods and services
similar to those offered by the complainant and thus, was not using the name in
connection with a bona fide offering of goods or services nor a
legitimate noncommercial or fair use); see
also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat.
Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed
domain name to redirect Internet users to a financial services website, which
competed with the complainant, was not a bona fide offering of goods or
services).
Although Respondent’s WHOIS
information appears to suggest Respondent is commonly known by the <unitedhea1thcare.com> domain name,
there is no other evidence in the record to support this contention. Respondent’s WHOIS
contact information previously listed Complainant’s address, telephone number
and e-mail address. However,
Complainant asserts it has no control over the disputed domain name.
In addition, after receiving a cease-and-desist letter, Respondent
altered the WHOIS contact information to reflect a different contact address
than Complainant’s. Respondent’s
activities constitute “cyberflying,” a practice of changing the registrant
information of a domain name before or during a UDRP proceeding in an attempt
to disrupt the proceeding and circumvent the Policy. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain pursuant to Policy ¶ 4(c)(ii). See Yoga Works, Inc.
v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by”
the <shantiyogaworks.com> domain name despite listing its name as
“Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the
Panel that the respondent was ever ‘commonly known by’ the disputed domain name
prior to its registration of the disputed domain name”); see also MB Fin. Bank, N.A. v. MBBANK, FA 644517 (Nat.
Arb. Forum Apr. 4, 2006) (finding that the respondent had no rights or
legitimate interests in the disputed domain name where the respondent’s WHOIS
information had been altered following the filing of the complaint); see also British Sky Broad.
Group plc v. Merino & Sky Services S.A., D2004-0131 (WIPO July 5,
2004) (holding that there was no evidence that the respondent was commonly
known by the disputed domain names where the respondent’s information was the
result of cyberflying).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent was previously using the disputed domain name to
resolve to a website which offered healthcare products and services that
directly competed with Complainant’s business.
Currently, Respondent’s disputed domain name resolves to a website which
provides health information and displays links to healthcare websites that
compete with Complainant. The Panel
finds Respondent’s previous and current uses of the disputed domain name
constitute disruption and are evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See
Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent
registered a domain name primarily to disrupt its competitor when it sold
similar goods as those offered by the complainant and “even included
Complainant's personal name on the website, leaving Internet users with the
assumption that it was Complainant's business they were doing business with”); see also Disney Enters., Inc. v. Noel,
FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name
confusingly similar to Complainant's mark to divert Internet users to a
competitor's website. It is a reasonable inference that Respondent's purpose of
registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii)
[and] (iv).”).
Respondent was previously using the disputed domain name to resolve to a website that mimicked Complainant’s websites and offered goods and services similar to Complainant’s. Respondent’s use of the disputed domain name is evidence Respondent was attempting to profit from the goodwill associated with Complainant’s UNITED HEALTHCARE mark by using its confusingly similar <unitedhea1thcare.com> domain name to pass itself off as Complainant. The Panel finds this use constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”).
Respondent’s website previously resolving from its
confusingly similar disputed domain name offered products and services that
directly competed with Complainant’s.
Currently, the website resolving from Respondent’s confusingly similar
disputed domain name displays links to other healthcare websites for which
Respondent presumably receives compensation in the form of click-through
fees. The Panel finds both of these uses
are an attempt by Respondent to profit from the goodwill associated with
Complainant’s UNITED HEALTHCARE mark and constitute bad faith registration and
use pursuant to 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
MathForum.com, LLC v. Weiguang
Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶
4(b)(iv) where the respondent registered a domain name confusingly similar to
the complainant’s mark and the domain name was used to host a commercial
website that offered similar services offered by the complainant under its
mark); 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 finds 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 <unitedhea1thcare.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 6, 2008
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