UnitedHealth Group Incorporated v. COMPSYS DOMAIN SOLUTIONS PRIVATE LIMITED.
Claim Number: FA0902001248711
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Chet
F. Garner, of Fulbright & Jaworski,
The domain name at issue is <optimhealthbank.com>, registered with Lead Networks Domains Pvt. Ltd.
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 March 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 30, 2009 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <optimhealthbank.com> domain name is confusingly similar to Complainant’s OPTUM mark.
2. Respondent does not have any rights or legitimate interests in the <optimhealthbank.com> domain name.
3. Respondent registered and used the <optimhealthbank.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group, Inc.,
is a leader in the health and well-being industry. Complainant also offers insurance and finance-related
services under the OPTUMHEALTH BANK mark.
Complainant owns a number of trademark registrations for the OPTUM
family of marks with the United States Patent and Trademark Office (“USPTO”) including
the OPTUM mark (i.e. Reg. No. 1,801,041 issued
Respondent registered the <optimhealthbank.com> 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.
The Panel finds Complainant has established rights in the
OPTUM mark pursuant to Policy ¶ 4(a)(i) through
registration of the mark with the USPTO.
See Miller Brewing
Complainant argues that Respondent’s <optimhealthbank.com> domain name is confusingly
similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains a
misspelled version of Complainant’s mark, adds the descriptive terms “health”
and “bank,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that a domain name that contains
a misspelled version of a complainant’s mark creates a confusing similarity
between the disputed domain name and the established mark. See Dow Jones & Co., Inc. v. Powerclick,
Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction
of errors or changes, such as the addition of a fourth “w” or the omission of
periods or other such “generic” typos do not change respondent’s infringement
on a core trademark held by the complainant); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum
The Panel also finds that descriptive terms that are added to a complainant’s registered mark create a confusing similarity between the disputed domain name and the mark. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Nat. Arb. Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)).
In addition, the Panel finds that the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . .").
Therefore, Respondent’s disputed domain name is confusingly similar to Complainant’s OPTUM mark pursuant to Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and
legitimate interests in the <optimhealthbank.com>
name. When Complainant makes a prima facie case in support of its
allegations, the burden is shifted to Respondent to prove that it does have
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(a)(ii). See Document Techs., Inc. v.
Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“
Panel finds that in this case, Complainant has established a prima facie case. See
Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd,
FA 406512 (Nat. Arb. Forum
Complainant asserts that Respondent is neither commonly
known by the disputed domain name, nor licensed to register domain names using
the OPTUM mark. Respondent’s WHOIS information identifies Respondent as
“Domainproxyagent.com,” and therefore lacks any defining characteristics
relating it to the disputed domain name.
The Panel finds that without affirmative evidence of Respondent being
commonly known by the disputed domain name, Respondent lacks all rights
and legitimate interests in the disputed domains name pursuant to Policy ¶
4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July
7, 2006) (concluding that the respondent was not commonly known by the disputed
domain names where the WHOIS information, as well as all other information in
the record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also M. Shanken
Commc’ns v. WORLDTRAVELERSONLINE.COM,
FA 740335 (Nat. Arb. Forum
Respondent is using the <optimhealthbank.com> domain name to display links advertising third-party websites, some of which are in competition with Complainant. The Panel infers that Respondent is using the disputed domain name to earn click-through fees, and thus finds that Respondent has not made a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of the <optimhealthbank.com> domain name to display links to Complainant’s competitors on the resolving website constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Respondent’s use of the <optimhealthbank.com> domain name in order to intentionally attract Internet users to its website by creating a strong possiblity of confusion with Complainant’s OPTUM mark and offering links to competing websites is further evidence of bad faith. The Panel infers that Respondent receives click-through fees for diverting Internet users to such websites. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that ¶ 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 <optimhealthbank.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: April 21, 2009
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