UnitedHealth Group Incorporated v. Private Registrations Aktien Gesellschaft c/o Domain Admin
Claim Number: FA0908001277666
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 <unitedhealthcarecompany.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 4, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 5, 2009.
On August 15, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <unitedhealthcarecompany.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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 August 24, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 14, 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@unitedhealthcarecompany.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 16, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 <unitedhealthcarecompany.com> domain name is confusingly similar to Complainant’s UNITED HEALTHCARE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcarecompany.com> domain name.
3. Respondent registered and used the <unitedhealthcarecompany.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, operates a business providing health care services under its UNITED HEALTHCARE mark. Complainant has registered its UNITED HEALTHCARE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,967,622 issued April 16, 1996).
Respondent, Private Registrations Aktien Gesellschaft c/o Domain Admin, registered the <unitedhealthcarecompany.com> domain name on April 13, 2008. Respondent’s disputed domain name resolves to a website displaying links to healthcare and insurance related products, including links to the websites of 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.
Complainant has registered its UNITED HEALTHCARE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,967,622 issued April 16, 1996). The Panel finds Complainant’s registration with the USPTO sufficiently evidences its rights in the UNITED HEALTHCARE mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <unitedhealthcarecompany.com> domain name contains Complainant’s UNITED HEALTHCARE mark with the following alterations: (1) the space between the terms has been removed; (2) the generic term “company” has been added; and (3) the generic top level domain (“gTLD”) “.com” has been added. The Panel finds these alterations do not sufficiently distinguish the disputed domain name from Complainant’s UNITED HEALTHCARE mark, thus leading to a finding of confusing similarity under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under 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 to prove it does have rights or legitimate interests in the disputed domain name. 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Respondent’s disputed domain name resolves to a website displaying links to healthcare and insurance-related products, including links to the websites of Complainant’s direct competitors. 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be 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)).
Complainant asserts Respondent is not commonly known by the disputed domain name. The WHOIS information lists the registrant as “Private Registrations Aktien Gesellschaft c/o Domain Admin.” Furthermore, Respondent has not responded to the Complaint and thus has not provided the Panel with any evidence countering Complainant’s assertion that Respondent is not commonly known by the disputed domain name. Thus, the Panel finds Respondent is not commonly known by the <unitedhealthcarecompany.com> domain 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 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).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends Respondent’s disputed domain name resolves to a website displaying third-party competitive links to other healthcare service providers, which disrupts Complainant’s healthcare business. The Panel finds Respondent is using the disputed domain name to disrupt Complainant’s business, and therefore Respondent has registered and is using the disputed domain name in bad faith pursuant to 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 Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Furthermore, Complainant
contends Respondent registered the <unitedhealthcarecompany.com>
domain name on April 13, 2008 and since that time has received compensation in
the form of click-through fees for displaying links to Complainant’s
competitors in the healthcare industry.
The Panel finds Respondent is attempting to profit by capitalizing on
the goodwill Respondent has established in its UNITED HEALTHCARE mark. Thus the Panel finds Respondent has engaged
in bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are
in the music and entertainment business.
The links associated with <billboard.tv> and <boogie.tv>
appear to be in competition for the same Internet users, which Complainants are
trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion
between <billboard.tv> and BILLBOARD as to the source, sponsorship,
affiliation, or endorsement of the web site or of a product or service on the
web site.”); see also
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 <unitedhealthcarecompany.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: September 24, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum