UnitedHealth Group Incorporated v. Total Net Solutions
Claim Number: FA0806001204916
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 <unitedhelathcare.com>, registered with Moniker Online Services, 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 12, 2008; the National Arbitration Forum received a hard copy of the Complaint on June 13, 2008.
On June 20, 2008, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitedhelathcare.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 15, 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@unitedhelathcare.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 21, 2008, 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 <unitedhelathcare.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhelathcare.com> domain name.
3. Respondent registered and used the <unitedhelathcare.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Inc., is diversified family
of companies offering services in the health and well-being industry. Currently, it serves approximately 70 million
Americans and has over US $71.5 billion in revenues annually. It has used the UNITED HEALTHCARE mark since
at least 1984 in connection with providing health care services including
health care cost management services, managed care services, insurances and administration
services for health-care benefit plans. It
owns numerous
Respondent’s <unitedhelathcare.com> domain name was registered on August 14, 2004 and currently resolves to directory website, where a listing of hyperlinks is displayed for various health case and insurance related products, many of which are direct competitors of 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.
The Panel finds that Complainant has sufficiently established rights in the UNITED HEALTHCARE mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (“Complainant has submitted evidence of its registration of the AOL mark with the USPTO. The Panel finds that such evidence establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
The <unitedhelathcare.com> domain name contains
the generic top-level domain (“gTLD”) “.com.”
However, this is irrelevant to a Policy ¶ 4(a)(i) analysis. See Trip
Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007)
(concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,”
or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis). Otherwise, the disputed domain name is a close
misspelling of Complainant’s UNITED HEALTHCARE mark, because it simply transposes
the position of the letters “a” and “l.”
Such a transposition though fails to distinguish a disputed domain
name. See Google Inc. v. Jon G.,
FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be
confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he
transposition of two letters does not create a distinct mark capable of
overcoming a claim of confusing similarity, as the result reflects a very probable
typographical error”); see also Wyndham
IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17,
2005) (finding the <wynhdam.com> and <wyandham.com> domain names to
be confusingly similar to the complainant’s WYNDHAM mark because the domain
names merely transposed letters in the mark).
As a result of these conditions, the Panel finds that the <unitedhelathcare.com>
domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark
pursuant to Policy ¶ 4(a)(i).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent lacks rights and legitimate interests in the <unitedhelathcare.com> domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.”). The Panel finds a prima facie case to have been established against Respondent, and that the burden is accordingly shifted to Respondent to prove that it does have rights or legitimate interests in the disputed domain name. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name).
Respondent has failed to submit a response in this
case. Therefore, the Panel may presume
that Respondent has no rights or legitimate interests in the disputed domain
name, but will nonetheless examine the record in consideration of the elements
listed under Policy ¶ 4(c). See BIC Deutschland GmbH & Co. KG v.
Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response,
Respondent has failed to invoke any circumstance which could demonstrate,
pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the
domain name”); see also Vanguard Group, Inc. v. Collazo,
FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent
failed to submit a Response, “Complainant’s submission has gone unopposed and
its arguments undisputed. In the absence
of a Response, the Panel accepts as true all reasonable allegations . . .
unless clearly contradicted by the evidence.”).
There is nothing in Respondent’s WHOIS information or in the record that indicates that Respondent is or ever was commonly known by the disputed domain name. Moreover, Complainant asserts that it has not granted Respondent permission or license to use the UNITED HEALTHCARE mark in any way. Absent any additional information in the record, the Panel finds that Respondent is not commonly known by the <unitedhelathcare.com> domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The website that resolves from the <unitedhelathcare.com>
domain name is a directory website, providing a list of hyperlinks to various
third-party websites, most of which offer insurance and healthcare products
that compete with those offered under Complainant’s UNITED HEALTHCARE mark. The panel in Focus Do It All Group v. Sermbizis, D2000-0923 (WIPO Oct. 6, 2000),
held that domain names that lead consumers searching for a particular business
“to a site where the same or similar services provided by others are listed”
established “that [the respondent] well knew what [the complainant’s] business
was” and to evidence that the respondent lacked rights or legitimate interest
in the disputed domain name. Likewise,
similar panels have found such use to fail to constitute any of the activities
listed under Policy ¶ 4(c)(i) or (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 Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb.
Forum Dec. 1, 2003) (finding that the respondent was not using the domain name
within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used
the domain name to take advantage of the complainant's mark by diverting
Internet users to a competing commercial site).
Consequently, the Panel finds Respondent’s use of the disputed
domain name to constitute neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and is using the disputed domain name in bad faith for the purpose of disrupting Complainant’s business. The <unitedhelathcare.com> domain name resolves to a directory website featuring various websites under the topics of healthcare and insurance. All of the links redirect Internet users to competitors of Complainant. In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the disputed domain name was confusingly similar to the complainant’s mark and resolved to a directory website featuring links to the complainant’s competitors. The panel found this use “constitutes evidence that registration and use was done primarily for the purpose of disrupting [the c]omplainant’s business in violation of Policy ¶ 4(b)(iii).” Similarly, the Panel finds that Respondent’s disruptive and competitive use of the disputed domain name establishes that Respondent registered and is using the <unitedhelathcare.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Furthermore, Complainant contends that it may be presumed
that Respondent is commercially benefiting from the disputed domain name. Previous panels have inferred commercial or
financial incentive on the part of a respondent when the disputed domain name resolves
to, displays links to, or advertises products or services that compete with
those offered by the complainant. See Velv,
LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that
the respondent’s use of the <arizonashuttle.net> domain name, which
contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic
to Respondent’s website offering competing travel services violated Policy ¶
4(b)(iv)); see also Univ. of Houston Sys. v. Salvia Corp., FA
637920 (Nat. Arb. Forum Mar. 21, 2006)
(“Respondent is using the disputed domain name to operate a website which
features links to competing and non-competing commercial websites from which
Respondent presumably receives referral fees.
Such use for Respondent’s own commercial gain is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv).”). Absent
any evidence to the contrary, the Panel finds that Respondent is commercially
benefiting from the disputed domain name through either “click-through” fees or
some other similar scheme. Therefore,
the Panel determines that Respondent has registered and is using the <unitedhelathcare.com>
domain name in bad faith in violation of Policy ¶ 4(b)(iv), because it has
registered a confusingly similar domain name in order to attempt to
commercially benefit from possible confusion between the disputed domain name
and Complainant’s UNITED HEALTHCARE mark.
See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002)
(finding that if the respondent profits from its diversionary use of the
complainant's mark when the domain name resolves to commercial websites and the
respondent fails to contest the complaint, it may be concluded that the
respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has sufficiently established 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 <unitedhelathcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: August 4, 2008
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