National Arbitration Forum

 

DECISION

 

Intermountain Health Care Inc. v. Rodney Cyr and The Environmental Coalition

Claim Number: FA0911001294382

 

PARTIES

Complainant is Intermountain Health Care Inc. (“Complainant”), represented by Michael E. Mangelson, of Stoel Rives LLP, Utah, USA.  Respondent is Rodney Cyr and The Environmental Coalition (“Respondent”), Colorado, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <intermountainhealthcare.mobi>, registered with Go Daddy Software, Inc.

 

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.

 

Robert A. Fashler as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 12, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 16, 2009.

 

On November 13, 2009, Go Daddy Software, Inc confirmed by e-mail to the National Arbitration Forum that the <intermountainhealthcare.mobi> domain name is registered with Go Daddy Software, Inc and that the Respondent is the current registrant of the name.  Go Daddy Software, Inc has verified that Respondent is bound by the Go Daddy Software, 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 November 19, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 9, 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@intermountainhealthcare.mobi by e-mail.

 

A timely Response was received on December 8, 2009.

 

Complainant’s Additional Submission was timely received on December 11, 2009.

 

Respondent did not file an Additional Submission.

 

On December 16, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Robert A. Fashler as Panelist.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

 

A. Complainant

 

Complainant is a Utah corporation that operates a nonprofit system of hospitals, surgery centres, doctors, clinics, and homecare and hospice providers serving the medical needs of the Intermountain West Region of the United States.

 

Complainant has been using the trademark INTERMOUNTAIN HEALTHCARE (the “Mark”) on a continuous and extensive basis since at least as early as 1975 in association with its services, including hospital, medical and healthcare services, educational services in the fields of healthcare, and insurance underwriting and administration of insurance plans.

 

Complainant holds eight registrations for the Mark (either alone or in a design format) in the United States Patent and Trademark Office (the “USPTO”), under numbers 1,913,834, 2,733,735, 2,908,387, 3,309,180, 3,309,181, 3,309,182, 3,309,183, 3,309,184, and 3,309,185 (the “Registrations”). The Registrations cover various components of Complainant’s services. The first Registration issued in 1995, and the other Registrations issued between 2003 and 2007.

 

Complainant has established an enviable reputation for its services through extensive and continuous marketing efforts.

 

The Respondent’s domain name <intermountainhealthcare.mobi> (the “Domain Name”) is identical to the mark. The Domain Name is also confusingly similar to the Mark.

 

Respondent registered the Domain Name more than 30 years after Complainant began using the Mark and 13 years after the first Registration issued.

 

Nowhere in the record, including Respondent’s WHOIS information, does Respondent indicate that it is or ever has been commonly known by the words “Intermountain Healthcare” or any derivation thereof. Until some time after the cease and desist letter discussed in the following paragraph, Respondent used the Domain Name only to resolve to a website (“Respondent’s Website”) that copied content directly from Complainant’s website (“Complainant’s Website”) in violation of copyrights owned by Complainant.

 

On October 16, 2009, Complainant’s external legal counsel sent a letter to Respondent demanding, inter alia, that Respondent cease and desist using the Domain Name and transfer the Domain Name to Complainant. That letter specifically complained about Respondent displaying on Respondent’s Website material copied from Complainant’s website.

 

On October 19, 2009, after receiving the letter referred to in the preceding paragraph, Mr. Rodney Cyr of Respondent telephoned Complainant’s internal Senior Counsel, Mr. Morris D. Linton. During that conversation, Mr Cyr offered to sell the Domain Name to Complainant for $3,000. This allegation is supported by an affidavit of Mr Linton.

 

Also on October 19, 2009, Mr Cyr sent an email to Complainant’s external legal counsel. That email has been tendered in evidence by Complainant. The entire message set out in that email is:

 

There are so many different ways people could use the term inter mountain health care could be used [sic] on the internet.  It could be a forum, or a blog, or used nationally with a different application then a regional hospital.  Possibly internationally.  Possibly a holistic food manufacturer may like the name for their product.  Or, a demographic company may want the name for intra, inter and urban health care.  This may be an incredible name for the hospitals little regional application, but many others may think their application has merit to the name as well.  It is way too broad and general, lacking uniqueness, to have the audacity to think [sic] the linking of common words offer some international cyber rights.

 

On November 2, 2009, Mr Cyr sent another email to Complainant’s internal Senior Counsel, Mr Linton. The entire message set out in that email is:

 

Here is our response on the domain name.  Being a big fish in a little pond is nice, however others would certainly like to have this .mobi TLD as well.

 

At some time after those communications, Respondent redirected the Domain Name, so that it now resolves to a website providing general information on the .mobi top level domain.

 

The WHOIS database for the Domain Name identifies The Environmental Coalition as the owner of the Domain Name. The name The Environmental Coalition is not remotely related to Intermountain Healthcare.

 

There is a lack of evidence showing that Respondent is commonly known by the Domain Name.

 

Given Complainant’s long-standing exclusive rights in the Mark, Respondent cannot legitimately refer to itself by any derivation of the Mark.

 

Complainant has not given Respondent any license, permission, or authorization to use the Mark or to register a domain name incorporating the Mark.

 

By copying Complainant’s copyrighted material and displaying it on Respondent’s Website, Respondent was attempting to pass itself off as Complainant, which evidences Respondent’s lack of rights and legitimate interests in the Domain Name.

 

Redirecting the Domain name to a generic website providing information about the .mobi top level domain also indicates Respondent’s lack of legitimate rights and interests in the Domain Name.

 

Respondent demonstrated a lack of legitimate rights and interests in the Domain Name by offering to sell the Domain Name to Complainant.

 

It is appropriate to conclude that Respondent had knowledge of the Mark at the time that it registered the Domain Name for the following reasons:

 

(a)                the Mark was generally well known as a consequence of significant use and publicity over 30 years;

(b)               the Domain Name is obviously connected with the Mark;

(c)                Respondent used the Domain Name in an attempt to pass off its business as that of Complainant; and

(d)               Respondent had constructive notice of the mark as a consequence of the Registrations, the earliest of which issued more than 13 years prior to registration of the Domain Name.

 

Respondent demonstrates bad faith by registering the Domain Name with knowledge that the Domain Name was identical to the Mark.

 

Respondent demonstrated bad faith by attempting to pass itself off as Complainant, creating a likelihood of confusion with the Mark as the source or sponsorship of the website associated with the Domain Name.

 

Respondent’s primary purpose in registering the Domain Name was the bad faith purpose of selling the Domain Name to Complainant for consideration in excess of Respondent’s costs directly related to the Domain Name. Specifically, Respondent demonstrated that bad faith purpose when Respondent offered to sell the Domain Name to Complainant for $3,000. Respondent further demonstrated bad faith when in response to Complainant’s refusal to buy the Domain Name for $3,000, Respondent then threatened to sell it to others.

 

Merely by registering a domain name that is so obviously connected with Complainant’s well-known Mark strongly suggests bad faith.

 

B. Respondent

 

It is difficult to paraphrase or characterize the Response, so the entire Response is reproduced as follows:

 

Someone from Intermountain Healthcare Regional Hospital (IMHC) IT department initially called The Environmental Coalition.  This person spoke at length with an intern who handles our web matters.  The intern asked me if they could use the Go Daddy website instant converter tool to show them how it looks after a site has been converted to .mobi.  During the telephone conversation the person from IMHC told our intern they thought the domain www.intermountainhealthcare.mobi was worth $3,000 - $5,000.  We mentioned that we don’t know about valuing a domain, The Environmental Coalition prefers to do thing for our members as gesture of a favorable relationship…by the way there is no cost associated with being a member.

 

Following that, we received a letter from an external IMHC hired lawyer.  At that time, our intern realized he mistakenly left the office immediately following the conversation with the IMHC person and the domain was unchanged from the .mobi state he had shown earlier.  When this was realized the domain was immediately placed back in its original state – so as not to show the IMHC site conversion.

 

The Environmental Coalition is working on a research study concerning healthcare in the mountainous regions of the United States and could use this domain when the results are published.

 

Also, The Environmental Coalition has received considerable donations in the form of hotel stays when traveling on business from InterMountain Management ~ who is a nationwide hotel developer.  We thought of transferring the domain to them, as reciprocity for their kindness towards our organization over the years…their employees could use it as reference for InterMountain Management Human Resources department posting of their healthcare matters.

 

We received the initial letter from IMHC outsourced legal counsel and we responded by asking IMHC to call us.  Mr. Morris Linton called saying he was the senior legal counsel for IMHC, and obviously has handled multi-million dollar lawsuits, belligerently asking – what are we doing with their property.  I attempted to explain to him that there are other uses for the name and even though they are a small regional hospital concern they did not have rights across all industries and uses.  He said his expertise was not in this area and threatened legal action if the domain was not transferred to them immediately.  It was relayed to him that we were told the domain was worth $3,000 to IMHC.  A contentious offer of $500.00 was refused The Environmental Coalition because we would use it for our purposes.  The irony is if they had taken a simple plain speaking approach in the beginning, by discussing what we intended to use it for and how we might consider transferring the name to them, there was an excellent possibility that we may not have used it for our purposes, or for the purposes of a constituent.  But now we are certainly going to use the domain www.intermountainhealthcare.mobi in-house or transfer it to an existing member company.

 

Intermountain Healthcare is not a famous name or company: Item 5.a (of the IMHC complaint) the first sentence states “providers that serves the medical needs of the Intermountain West Region of the United States.”  IMHC’s only claim to nationwide fame is President Obama mentioning it one time as an example of regional health company.  I tried to explain to Mr. Linton that the name is not famous and considerably closer to common description like sunshine, then a unique name like Clorox.

 

We would like to keep the domain www.intermountainhealthcare.mobi for our purposes.

 

Respondent did not provide any attachments or exhibits together with that written submission.

 

C. Complainant’s Additional Submission

 

Complainant strongly disputed the facts that were asserted and implied in the Response.

 

Complainant contends that the following statement made in the Response is false:

 

The Environmental Coalition has received considerable donations in the form of hotel stays when traveling on business from InterMountain Management ~ who is a nationwide hotel developer.  We thought of transferring the domain to them, as reciprocity for their kindness towards our organization over the years…their employees could use it as reference for InterMountain Management Human Resources department posting of their healthcare matters.

 

Complainant says that it contacted InterMountain Management, LLC to verify the truth of the allegations made by Respondent. On December 11, 2009, Mr Josef Cook, who is the IT/Media Coordinator of InterMountain Management, LLC wrote an email responding to Complainant’s inquiry. The entire message set out in that email is as follows:

 

I am contacting you in response to your conversation with Nikki Tinnerello and Tod Cagle regard [sic] InterMountain Management’s relationship to The Environmental Coalition and Mr. Rodney Cyr.

 

I am the IT Coordinator for InterMountain Management.  The first contact we had from Mr. Cyr came in the form of a voicemail he left for our company’s owner (Dewey Weaver) a month or two ago.  Mr.Weaver called me into his office to listen to the voicemail and see if it was anything we needed to respond to.  In the voicemail, Mr. Cyr introduced himself (with no mention of the name of his company that I can recall), and he stated that he owned the domain name “InterMountainHealthCare.mobi”.  He said that he would like to offer to give us the domain for possible use by our human resource department.

 

I visited the domain to find a simple placeholder website.  Considering that we already own our own domain (intermtn.biz), and provide our employees with a privately accessible extranet site as a subdomain, I decided that we really had not use for the domain he was offering.  I assumed that he was contacting us from a list of companies that might share an interest in his domain, so I didn’t feel the need to respond to his query, and we have not heard from him since.

 

I spoke with Mr. Weaver this morning, and he has never heard of the Environmental Coalition or Mr. Rodney Cyr, outside of the cold-call voicemail I mentioned above.  Mr. Weaver approves all charitable donations, and he has never donated anything to this organization nor to Mr. Cyr.  We certainly don’t have a longstanding relationship with Mr. Cyr or his company, as his letter claims.

 

Please let me know if you need any additional information or if you require any further clarification from us regarding this matter.

 

Complainant also disputes all factual allegations set out in the Response in relation to communications that Respondent says occurred between “someone from Intermountain Healthcare Regional Hospital” and “an intern who handles our web matters”. Complainant says that it conducted a thorough internal investigation to determine whether there was any truth to these allegations and could not identify anyone within Complainant’s organization who had any contact with Respondent before the cease and desist letter was sent to Respondent. Complainant’s version of these events is supported by an affidavit of Gene A Smith, who is Complainant’s Director of E-Business for Public Facing Websites.

 

Complainant’s Additional Submission also:

 

(a)                denies all additional factual statements and arguments made, suggested or implied by Respondent; and

(b)               points out that the Response does not dispute the existence of the Registrations, does not prove that Respondent has any rights or legitimate interests in the Domain Name, and does not provide any explanation, let alone evidence, of how its registration and use of the Domain Name was not in bad faith.

 

D. No Additional Submission Filed by Respondent

 

Respondent has not filed an Additional Submission in reply to Complainant’s Additional Submission.

 

FINDINGS

 

For the reasons set forth below, the Panel finds that Complainant has proven all of the elements of Paragraph 4 (a) of the Policy and orders that the Domain Name be transferred to Complainant.

 

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.

 

Preliminary Findings

 

A.        Defaults by Respondent

 

For the most part, the Response fails to address the three elements at issue in this proceeding and provides no evidence of any of its allegations. Accordingly, the Response substantially fails to satisfy the requirements of Paragraph 5 (b) (i) of the Rules, because it does not respond specifically to the statements and allegations made in the Complaint and does not set out the bases for Respondent to retain registration and use of the Domain Name.

 

The Response does not comply with Paragraphs 5 (b) (iii), (vii) or (viii) of the Rules. Paragraph 5 (b) (viii) is particularly relevant because it requires the Respondent to conclude the Response with the following certification in the Response:

 

Respondent certifies that the information contained in this Response is to the best of Respondent's knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument

 

Pursuant to Rule 14 (b), the Panel finds that Respondent is substantially in default of Rule 5 (b).

 

B.        Credibility

 

The Response raises serious questions about Respondent’s credibility.

 

Respondent asserts facts about an alleged relationship with InterMountain Management, LLC . In its Additional Submission, Complainant submitted new evidence, which, if true, would reveal Respondent’s allegations of fact to be completely fabricated. That evidence consisted of an unsworn statement in an email from an individual employed by InterMountain Management, LLC, Mr. Josef Cook. In that email, Mr Cook addressed his own experiences as well as experiences recounted to him by the owner of InterMountain Management, LLC, Mr. Dewey Weaver.

 

It cannot be denied that the evidence tendered by Complainant on this subject is unsworn and contains hearsay. However, the Panel still considers the email to be reliable and admissible in the context of a UDRP proceeding. Of equal, if not greater, importance Respondent had the opportunity to contradict Complainant’s evidence with its own Additional Submission, but it chose not to do so.

 

Respondent and Complainant also disagree on whether or not another event alleged by Respondent actually occurred.  Respondent appears to be asserting that the Domain Name resolved to a website displaying content copied from Complainant’s website only as a consequence of some telephone conversation between “someone from Intermountain Healthcare Regional Hospital” and “an intern who handles our web matters”. Respondent is vague about how that conversation is supposed to have resulted in Respondent displaying the infringing content on its website. Quite apart from that weakness in Respondent’s story, Complainant flatly denies that the conversation ever took place and supports that allegation with the sworn affidavit of Mr. Gene A. Smith, Complainant’s Director for Public Facing Websites. By choosing not to file its own Additional Submission, Respondent has also failed to contradict Complainant’s evidence on the issue.

 

The only other evidence reflecting Respondent’s state of mind can be found in the two emails from Mr. Cyr provided by Complainant. Both are repeated verbatim above in this decision. Those communications are palpably disingenuous. Respondent’s obvious intent is to manipulate Complainant into paying a significant amount for the Domain Name. The implicit threat to sell the Domain Name to others is thinly veiled.

 

For the foregoing reasons, the Panel expressly finds that Respondent lacks credibility.

 

Identical and/or Confusingly Similar

 

Complainant holds rights in the Mark by virtue of the Registrations, which all issued in the USPTO before the Domain Name was registered. Under U.S. law, the Registrations are presumed to be valid and to have secondary meaning. The Panel finds that Complainant has established that it has rights in the Mark.  See Victoria's Secret Stores Brand Mgmt., Inc. v. Machuszek, FA 945052 (Nat. Arb. Forum May 7, 2007) (finding that “Complainant has established rights in the VICTORIA’S SECRET mark through [multiple] registrations [with the USPTO]  under Policy ¶ 4(a)(i).”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”).

 

The Domain Name - intermountainhealthcare.mobi - incorporates the entire Mark - INTERMOUNTAIN HEALTHCARE. The only differences are: (i) the space between the words “intermountain” and “healthcare” have been removed, and (ii) the generic top-level domain “.mobi” has been added.  The Panel finds that the Domain Name is identical to Complainant’s INTERMOUNTAIN HEALTHCARE mark under Paragraph 4 (a)(i) of the Policy.  See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the addition of “.mobi” was a functional change and thus the domain name <gwbakeries.mobi> was identical to the GW BAKERIES mark 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 that Complainant has satisfied its burden under Paragraph 4 (a) (i) of the Policy.

 

Rights or Legitimate Interests

 

Under Paragraph 4(a) (ii) of the Policy, Complainant must establish a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name. As the requirement is to prove a negative and the relevant information is, for the most part, within the exclusive knowledge of Respondent, Complainant’s burden is light.  Once Complainant satisfies that burden, the onus shifts to Respondent to prove that 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 provided evidence that Respondent’s Website displayed material about Complainant that was copied from Complainant’s Website and which clearly identified Complainant and its business, products and services. Complainant contends that such activity constitutes passing off and demonstrates that Respondent lacks rights and legitimate interests in the Domain Name. Respondent addressed that allegation as follows:

 

Someone from Intermountain Healthcare Regional Hospital (IMHC) IT department initially called The Environmental Coalition.  This person spoke at length with an intern who handles our web matters.  The intern asked me if they could use the Go Daddy website instant converter tool to show them how it looks after a site has been converted to .mobi….

Following that, we received a letter from an external IMHC hired lawyer.  At that time, our intern realized he mistakenly left the office immediately following the conversation with the IMHC person and the domain was unchanged from the .mobi state he had shown earlier.  When this was realized the domain was immediately placed back in its original state – so as not to show the IMHC site conversion.

 

That is a exceedingly vague and elusive recounting of the supposed facts. When did this alleged event occur? What is the identity of the intern? Who was the representative of Complainant who is supposed to have called? Why did Respondent not provide an affidavit of the intern to back up its story? In its Additional Submission, Complainant flatly denies that the alleged event occurred, and provides an affidavit in support of that position. Respondent chose not to reply to that evidence although it was entitled to do so.

 

As already noted, the Panel finds Respondent to be lacking credibility both generally and in respect of this particular allegation. The Panel concludes that Complainant’s version of the facts is far more credible. Accordingly, the Panel finds that up to the time that Complainant sent Respondent the cease and desist letter,  the only manner in which Respondent used the Domain Name was to display material copied from Complainant’s website that clearly identified Complainant and its business, products and services. This constitutes some evidence tending to show that Respondent lacks rights and legitimate interests in the Domain Name. See Choice Hotels Int’l, Inc. v. Martin Koot, FA 1283172 (Nat. Arb. Forum Oct. 21, 2009), (finding that respondent lacks rights and legitimate interests in the disputed domain name because the website to which the disputed domain name resolves contains content copied from complainant); see also MO Media LLC v. NeXt Age Technologies LTD, FA 220031 (Nat. Arb. Forum Feb. 18, 2004) (finding the respondent lacked rights and legitimate interests in the disputed domain name when the respondent copied the complainant’s websites in their entirety at the disputed domain names); see also Dream Horse Classifieds v. Mosley, FA 381256 (Nat. Arb. Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)).

 

Complainant also argues that all available evidence demonstrates that Respondent is not generally known by the name Intermountain Healthcare. That evidence includes the WHOIS information for the Domain Name, which identifies the Registrant as Rodney Cyr and the Registrant Organization as The Environmental Coalition. The Panel also notes that the Response, which was provided in the form of a letter on Respondent’s letterhead stationary, identifies only Mr. Cyr and The Environmental Coalition. The same holds true for the two emails from Mr. Cyr discussed earlier. Further, neither website to which the Domain Name resolved identified Respondent as Intermountain Healthcare. The Panel accepts these facts as some evidence tending to show that Respondent lacks rights and legitimate interests in the Domain Name. See 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); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).

 

Complainant argues that Respondent’s willingness to part with the Domain Name for a price in excess of its out-of-pocket registration costs is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Paragraph 4 (a) (ii) of the Policy. The Panel accepts these facts as some evidence tending to show that Respondent lacks rights and legitimate interests in the Domain Name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).

 

The Response and the two emails from Mr. Cyr provide additional evidence tending to support the conclusion that Respondent does not have any rights or legitimate interests in the Domain Name. These communications clearly demonstrate that Respondent never made any real use of the Domain Name for any purpose other than re-sale. Respondent went out of its way to communicate – in what appears to be a deliberately vague and elusive manner - how it might choose to use the Domain Name or to transfer it to another party. For example, the Response contains the following statements:

 

The Environmental Coalition is working on a research study concerning helalthcare in the mountainous regions of the United States and could use the domain when the results are published.

 

...We thought of transferring the domain to them… .

 

…we could use it for our purposes… .

 

These communications reveal that the Domain Name was not connected to any other activities in which Respondent was legitimately engaged. There was clearly no nexus of activity to which bare ownership of the Domain Name could be linked and thereby provide an objective basis that might give rise to rights or legitimate interests. The Panel finds that these facts constitute some evidence tending to show that Respondent lacks rights and legitimate interests in the Domain Name.

 

Complainant asserts, and Respondent does not deny, that Complainant has not given Respondent any license, permission, or authorization to use the Mark or to register a domain name incorporating the Mark.

 

Having regard to all of the foregoing facts, taken together, the Panel finds that Complainant has fully satisfied its burden under Paragraph 4 (a) (ii) of the Policy. In fact, Complainant has made out more than a prima facie case.

 

Complainant has also made submissions regarding Paragraph 4 (c) of the Policy. However, it is not necessary for the Panel to consider those arguments because the Respondent has fallen far short of proving, or even asserting, any of the elements set out in Paragraph 4 (c) of the Policy.

 

Registration and Use in Bad Faith

 

Complainant submitted the affidavit of Mr. Morris Linton, Complainant’s senior counsel, stating that he had a telephone conversation with Mr. Cyr on October 19, 2009, during which Mr. Cyr offered to sell the Domain Name to Complainant for $3,000.  Complainant contends that this amount is in excess of any out-of-pocket costs associated with registration and development of the disputed domain name and the resolving website, respectively.  Respondent does not deny that it offered to sell the disputed domain name to Complainant for $3,000.  In fact, Respondent expressly admits that it rejected a counter-offer made by Complainant to purchase the Domain Name for $500.

 

The Panel finds that Respondent’s offer to sell the Domain Name is evidence of bad faith registration and use under Paragraph 4 (b) (i) of the Policy.  See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Nat. Arb. Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)); see also Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Nat. Arb. Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs).

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <intermountainhealthcare.mobi> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Robert A. Fashler, Panelist
Dated: 31 December 2009

 

 

 

 

 

 

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