Rex Hospital, Inc. d/b/a Rex Healthcare v. Web Advertising, Corp
Claim Number: FA0804001177522
Complainant is Rex Hospital, Inc. d/b/a Rex Healthcare (“Complainant”), represented by William
S. Fultz, of Parker, Poe, Adams & Bernstein L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <rexhealth.net>, registered with Domaindoorman, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or 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 April 14, 2008, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <rexhealth.net> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC 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 April
17, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 7, 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@rexhealth.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <rexhealth.net> domain name is confusingly similar to Complainant’s REX HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <rexhealth.net> domain name.
3. Respondent registered and used the <rexhealth.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Rex Hospital, Inc. d/b/a Rex Healthcare, is a
not-for-profit health care business.
Complainant’s healthcare facilities currently include a hospital, three
wellness centers, skilled nursing and rehabilitation facilities, an outpatient
diagnostic center, an urgent care center, and a surgery center. Complainant owns several trademark registrations
for its REX family of marks, including a registration with the North Carolina
Secretary of State for the REX HEALTHCARE mark (Reg. No. T-14754 issued
Respondent registered the <rexhealth.net>
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.
Complainant asserts that it has established rights in REX
HEALTHCARE by registering the business name, as well as the trademark with the
Secretary of the State of
Respondent’s <rexhealth.net> domain name is confusingly
similar to Complainant’s REX HEALTHCARE mark.
Respondent’s disputed domain name contains an abbreviated version of
Complainant’s mark and adds the generic top-level domain (“gTLD”) “.net.” The Panel finds that the use of an
abbreviated registered mark in a disputed domain name is confusingly similar to
a complainant’s mark. See Modern Props, Inc. v.
Wallis, FA 152458 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights and
legitimate interests in the <rexhealth.net>
domain name. Under Policy ¶
4(a)(ii), after the complainant makes a prima
facie case against the respondent, the respondent then has the burden of
showing evidence that it does have rights and legitimate interests in the
disputed domain name. The Panel finds
that Complainant has made a prima facie
case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Complainant contends that Respondent is not commonly known
by the <rexhealth.net> domain
name, nor have they ever been the owner or licensee of the REX HEALTHCARE
mark. The WHOIS record for the disputed
domain name lists Respondent as “Web Advertising, Corp.” This evidence, along with the fact that
Respondent has failed to show any evidence contrary to Complainant’s
contentions, compels the Panel to find that Respondent is not commonly known as
<rexhealth.net> pursuant to
Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne
Corp. Services11, Inc., FA 198969 (Nat.
Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the
disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”);
see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum
Complainant asserts that
Respondent is using the <rexhealth.net>
domain name
to display links to third-party websites in competition with Complainant. The Panel finds that this type of use of a
disputed domain name is neither a bona
fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a
legitimate noncommercial fair use pursuant to Policy ¶ 4(c)(iii). See
DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat.
Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in
connection with a bona fide offering of goods and services because Respondent
is using the domain name to divert Internet users to <visual.com>, where
services that compete with Complainant are advertised.”); see also 24 Hour Fitness USA, Inc. v.
24HourNames.com-Quality Domains For
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent is using the <rexhealth.net> domain name in order to
intentionally attract Internet users to its website by creating a likelihood of
confusion with Complainant’s mark and offering third-party links to competing
websites. The Panel infers that
Respondent receives click-through fees for diverting Internet users in this
fashion. Therefore, pursuant to Policy ¶
4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad
faith registration and use. See 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.’”); see also Drs. Foster
& Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
In addition, Respondent’s use of the <rexhealth.net> domain name to compete with
Complainant is further evidence of bad faith.
The Panel finds that a registered domain name used primarily to disrupt
the business of a competitor demonstrates bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum
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 <rexhealth.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 27, 2008
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