Universal Health Services, Inc. v. Ying Liu
Claim Number: FA0903001254651
Complainant is Universal
Health Services, Inc. (“Complainant”), represented by Rebecca E. Crandall, of Williams Mullen,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <universalhealthservices.com>, registered with Network Solutions, 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 March 27, 2009; the National Arbitration Forum received a hard copy of the Complaint on March 27, 2009.
On March 27, 2009, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <universalhealthservices.com> domain name is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, 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 April 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 23, 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 postmaster@universalhealthservices.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 30, 2009, 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 <universalhealthservices.com> domain name is identical to Complainant’s UNIVERSAL HEALTH SERVICES mark.
2. Respondent does not have any rights or legitimate interests in the <universalhealthservices.com> domain name.
3. Respondent registered and used the <universalhealthservices.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Universal Health Services, is one of largest healthcare management companies in the nation, Complainant began operating under its UNIVERSAL HEALTH SERVICES mark in 1979, and registered its mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,985,345 issued July 9, 1996).
Respondent registered the <universalhealthservices.com> domain name on March 16, 2009. The disputed domain name resolves to a website that displays click-through advertising for Complainant’s direct competitors.
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’s registration of the
UNIVERSAL HEALTH SERVICES mark with the USPTO adequately demonstrates
Complainant’s rights in the mark under Policy ¶ 4(a)(i). See
Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the
[complainant’s] mark is registered with the USPTO, [the] complainant has met
the requirements of Policy ¶ 4(a)(i).”); see
also Miller Brewing
The <universalhealthservices.com> domain name
contains Complainant’s UNIVERSAL HEALTH SERVICES mark while omitting the spaces
in the mark and adding the generic top-level domain “.com.” The Panel finds that neither alteration
creates a meaningful distinction under the Policy and therefore finds that the
disputed domain name is identical to the mark under Policy ¶ 4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
There is no evidence in the record, including the WHOIS
information, by which the Panel could conclude that Respondent is commonly
known by the disputed domain name. The
WHOIS information lists Respondent as “Ying Liu,” and Complainant has asserted
that Respondent is not authorized to use Complainant’s mark. The Panel therefore finds that Respondent has
failed to meet Policy ¶ 4(c)(ii), in that Respondent is not commonly known by
the disputed domain name. See M.
Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence
in the record); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
Complainant
contends that the disputed domain name resolves to a website that displays
click-through advertising for Complainant’s direct healthcare management
competitors. The Panel finds that such a
use fails as 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 Royal Bank of Scotland Grp
plc et al. v. Demand Domains, FA
714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a
commercial web directory displaying various links to third-party websites was
not a use in connection with 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), as the respondent presumably earned “click-through” fees
for each consumer it redirected to other websites); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (holding that using an identical or confusingly similar domain name to
earn click-through fees via sponsored links to a complainant’s competitors does
not represent 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The identical disputed domain name used to present Internet users with competitive click-through advertisements presents a clear indication that Respondent intended to disrupt Complainant’s business operations. This is sufficient evidence for the Panel to find that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Finally, that Respondent has utilized the disputed domain
name for commercial reasons by displaying competitive click-through
advertisements demonstrates Respondent’s creation of a likelihood of confusion
as to the source, sponsorship, affiliation, or endorsement of the disputed
domain name and resolving website. The
Panel therefore finds that Respondent has engaged in bad faith registration and
use under Policy ¶ 4(b)(iv). See
Allianz of Am. Corp. v. Bond,
FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith
registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting
Internet users searching for the complainant to its own website and likely
profiting); see also
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 <universalhealthservices.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: May 14, 2009
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