Meriter Health Services Inc. v. Digi Real Estate Foundation
Claim Number: FA0808001218643
Complainant is Meriter Health Services Inc. (“Complainant”), represented by Jennifer
R. Racine, of Godfrey & Kahn S.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <meriterhospital.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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 14, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 3, 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@meriterhospital.com 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
<meriterhospital.com> domain
name is identical to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <meriterhospital.com> domain name.
3. Respondent registered and used the <meriterhospital.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Meriter Health Services, Inc.,
provides health care services under its
Respondent registered the disputed 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 registered its
Respondent’s disputed domain name fully incorporates
Complainant’s
Therefore the Panel finds Respondent’s disputed domain name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent otherwise. The Panel finds Complainant has presented an
adequate prima facie case to support
its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record
and determine if Respondent has rights or legitimate interests 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum
Complainant alleges Respondent is not commonly known by the
disputed domain name. The WHOIS
information lists Respondent as “Digi Real Estate Foundation,” and Complainant
has stated it has not authorized Respondent to use its
Respondent’s disputed domain name resolves to a website offering links to third-party websites that compete with Complainant’s health services business. The Panel finds Respondent’s use of the disputed domain name is not 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 Oregon State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) (“Respondent's advertising of legal services and sale of law-related books under Complainant's name is not a bona fide offering of goods and services because Respondent is using a mark confusingly similar to the Complainant's to sell competing goods.”); see also 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.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website
displaying links to third-party websites that compete with Complainant’s health
care services. The Panel finds
Respondent’s use of the disputed domain name constitutes disruption and is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Arb. Forum
Respondent is using the confusingly similar disputed domain
name to display links to competing third-party websites. Respondent presumably receives compensation
for its use of the disputed domain name in the form of click-through fees. The Panel finds Respondent’s use of the
disputed domain name is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv) because it is an attempt to profit
from the goodwill Complainant has established in its
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 <meriterhospital.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: September 29, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum