Inc. v. Loornar c/o
Claim Number: FA0910001290028
Complainant is 1-800
Doctors, Inc. (“Complainant”), represented by Darren S. Cahr, of Drinker Biddle & Reath LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <1800doctors.net>, registered with Fabulous.com Pty Ltd.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 23, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <1800doctors.net> domain name is confusingly similar to Complainant’s 1-800-DOCTORS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <1800doctors.net> domain name.
3. Respondent registered and used the <1800doctors.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, 1-800-Doctors, Inc., was founded in 1984 and
provides comprehensive information about health care providers to
consumers. In 1998 it created a website
resolving from the <1-800-doctors.com> domain name to provide another
portal for these services. 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 that Complainant has established rights in
the 1-800-DOCTORS.COM mark under Policy ¶ 4(a)(i) via
its registration with the USPTO (Reg. No. 2,490,017 issued
domain name differs from Complainant’s 1-800-DOCTORS.COM mark by changing the generic top-level domain
(“gTLD”) found in the mark from “.com” to “.net” and removing the hyphens from
the mark. The Panel finds that the
disputed domain name is confusingly similar to Complainant’s mark under Policy
¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the <1800doctors.net>
domain name. If the Panel finds that Complainant’s
allegations establish such a prima facie case, the burden shifts to
Respondent to show that it does indeed have rights or legitimate interests in
the disputed domain name pursuant to the guidelines in Policy ¶ 4(c). The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case that Respondent has no rights or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii).
Since no response was submitted
in this case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed
domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <1800doctors.net> domain
name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the 1-800-DOCTORS.COM mark, and the WHOIS information identifies the
registrant as “Loornar c/o
Respondent’s <1800doctors.net> domain name
resolves to a website that offers links to third-party websites, some of which
are competitors of Complainant. The
Panel finds that this use is 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 of the disputed domain name pursuant to Policy ¶
4(c)(iii). See TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <1800doctors.net>
domain name, which was registered on
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is confusingly similar to Complainant’s 1-800-DOCTORS.COM
mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s
affiliation with the resulting website.
Thus, Respondent’s use of the <1800doctors.net>
domain name constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co.
v. Celebrex Drugstore, FA 123933 (Nat. Arb.
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 <1800doctors.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 8, 2009
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