Claim Number: FA0810001230242
PARTIES
Complainant is Rockdale Medical Center (“Complainant”), represented by Steven
Wong, of Hope Baldauff Hartman, LLC, Georgia,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rockdalehospital.com>, registered
with Computer
Services Langenbach Gmbh d/b/a Joker.com.
PANEL
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.
David P. Miranda, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 21, 2008; the
National Arbitration Forum received a hard copy of the Complaint on October 24, 2008.
On October 24, 2008, Computer Services Langenbach Gmbh d/b/a Joker.com
confirmed by e-mail to the National Arbitration Forum that the <rockdalehospital.com>
domain name is registered with Computer Services
Langenbach Gmbh d/b/a Joker.com
and that the Respondent is the current registrant of the name. Computer
Services Langenbach Gmbh d/b/a Joker.com
has verified that Respondent is bound by the Computer
Services Langenbach Gmbh d/b/a Joker.com
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 November 4, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of November 24, 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@rockdalehospital.com by
e-mail.
A timely Response was received and determined to be complete on November 24, 2008, but was determined to be deficient
under ICANN Rule 5 because no hard copy of the Response was received before the
Response deadline.
Complainant submitted an Additional Submission that was received on
November 26, 2008 and determined to be timely and complete pursuant to
Supplemental Rule 7.
On December 9, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed David P. Miranda, Esq., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that Respondent has no rights or legitimate interests with respect to <rockdalehospital.com> but rather that the domain resolves to a pay-per-click website containing links that describe or relate to Complainant’s areas of services, but resolve to websites wholly unrelated to Complainant. Complainant further contends that Respondent is not known as Rockdale, and that Complainant has not authorized or licensed Respondent to register a domain containing its Rockdale mark.
Complainant contends that Respondent registered and is using the domain name in bad faith by diverting it to third party websites unrelated to Complainant via misleading internet links, and that Respondent’s registration and use is likely to mislead consumers seeking Complainant’s services as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
B. Respondent
Respondent submitted a response via email dated November 5, 2008,
deemed deficient by the National Arbitration Forum because no hardcopy was
provided. Respondent’s response is not signed, nor is it provided from any
identifiable person. Respondent contends generally that
Complainant is not known as
C. Additional Submissions
In its additional submission
Complainant contends that Complainant is known by both the names
FINDINGS
Complainant’s
allegations set forth a prima facie case under the UDRP, Respondent’s response is deficient in both
form and substance, no proof is submitted to rebut Complainant’s claims of the
domain being identical or confusingly similar to Complainant’s marks, that
Respondent is without rights or legitimate interests in the domain, and the
domain was registered and used in bad faith by Respondent, and as such, the panel directs that the
domain be transferred.
Respondent has provided a Response that was determined to be deficient by the National Arbitration Forum pursuant to ICANN Rule 5, because it was not received in hard copy before the Response Deadline. The Response consists of two virtually identical e-mails received by the National Arbitration Forum submitted through an e-mail address that corresponds to the address listed in the WHOIS information for the <rockdalehospital.com> domain name. The Response contains no certification or any identification of who wrote and submitted the Response, or whether the information contained within is complete and correct as required by Rule 5(b)(viii). Additionally, no supporting documentation or evidence is provided.
As a preliminary matter, the Panel has sole discretion in considering whether or not to consider a deficient response. See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist). In exercising this discretion, previous panels have been concerned with issues of due process and the extent to which a deficient response prejudices either party. See Mattel, Inc. v. Yoon, FA 967843 (Nat. Arb. Forum June 4, 2007) (deciding to consider a deficient response because of the need to resolve the dispute between the parties, and because ruling the response inadmissible due to formal deficiencies would not be consistent with the basic foundations of due process). But see Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb. 21, 2002) (“[R]uling a Response inadmissible because of formal deficiencies would be an extreme remedy not consistent with the basic principles of due process. . .”).
The Panel has concerns with the
informality, lack of supporting evidence, and cursory nature of the Response.
Nonetheless, despite these deficiencies, the Panel would consider those
portions of the deficient Response that contain information useful or otherwise
helpful to the Panel in making its decision. See Clear!Blue Holdings, L.L.C. v. NaviSite,
Inc., FA 888071 (Nat. Arb. Forum
Mar. 5, 2007) (deciding to consider the respondent’s response even though it
was deficient because it provided useful information to the panel in making its
decision); see also Vandergriff v. Sklute,
FA 959691 (Nat. Arb. Forum May 29, 2007) (agreeing to consider a response that
was received late and not in hard copy format, as it was essential to the
panel’s understanding of the issues involved in the case); see also SEMCO Prods., LLC v. dmg world media (uk) ltd, FA 913881 (Nat. Arb. Forum Apr. 9,
2007) (deciding to consider a deficient Response because it provided
information that that the panel believed would be helpful in making its
decision).
However, the Panel finds that the
Response provides no substantive information to rebut Complainant’s allegations. See Bank
of Am. Corp. v. NW Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (refusing to accept Respondent’s deficient Response that
was only submitted in electronic form because it would not have affected the
outcome had the Panel considered it). But
see Wick Comms.
Additionally, the lack of formality,
supporting evidence and certification of either Respondent’s identity or that
Respondent submitted a complete and accurate Response is sufficient grounds for
the Panel to decide to decline to consider the deficient Response. See Talk
City Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (concluding
that no weight would be afforded to the facts alleged in the respondent’s
deficient submission, partly because it “did not contain any certification that
the information contained in the e-mail was, ‘to the best of Respondent’s
knowledge complete and accurate’” in accordance with Rule 5(b)(viii));
see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“[t]he Panel has rejected Respondent’s brief,
e-mail-only, unsupported and uncertified Response because it is not in
compliance with ICANN Rule 5.”).
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
Since the Respondent has failed to submit any proof or support opposing Complainant’s allegations, the panel may accept all reasonable and appropriate inferences contained within the Complaint. See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (without an adequate timely filed response, all reasonable inferences of fact in the allegations of the complaint will be taken as true); see also Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the respondent’s failure to submit a hard copy of the response and its failure to include any evidence to support a finding in its favor placed the respondent in a de facto default posture, permitting the panel to draw all appropriate inferences stated in the complaint).
Complainant has alleged rights in the
Complainant must first make a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii), and then
the burden shifts to Respondent to show it does have rights or legitimate
interests. See Hanna-Barbera Prods., Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show
that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA
780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima
facie showing that Respondent does not have rights or legitimate interest in
the subject domain names, which burden is light. If Complainant satisfies its burden, then the
burden shifts to Respondent to show that it does have rights or legitimate
interests in the subject domain names.”).
Complainant contends that Respondent
is not commonly known by the <rockdalehospital.com>
domain name nor has it ever been the owner or licensee of the
Complainant
contends that Respondent diverts Internet customers from Complainant’s website
to Respondent’s website that resolves from the disputed domain name, through
the confusion caused by the similarity between the
The panel finds only that the Complainant has
set forth claims satisfying the
elements under the UDRP Policy, and makes no determination as to the strength
of those claims, or of the ability of the Respondent, or some third party, to rebut those claims.
DECISION
Having alleged all three elements required under the ICANN Policy, the
Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rockdalehospital.com> domain name be
TRANSFERRED from Respondent to Complainant.
David P. Miranda, Esq., Panelist
Dated: January 5, 2009
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