UnitedHealth Group Incorporated v. Rodney Cyr c/o The Environmental Coalition
Claim Number: FA0912001297878
Complainant is UnitedHealthGroup
Incorporated (“Complainant”), represented by Timothy M. Kenny, of Fulbright & Jaworski,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <unitedhealthcare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi>, registered with GoDaddy.com. The <pacificare.mobi> domain name registered with 1&1 Internet AG is also at issue.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 10, 2009.
On December 8, 2009, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <unitedhealthcare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names are registered with GoDaddy.com and that Respondent is the current registrant of the names. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com 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 December 9, 2009, 1&1 Internet AG confirmed by e-mail to the National Arbitration Forum that the <pacificare.mobi> domain name is registered with 1&1 Internet AG and that Respondent is the current registrant of the name. 1&1 Internet AG has verified that Respondent is bound by the 1&1 Internet AG 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 December 15, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 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@unitedhealthcare.mobi, postmaster@pacificare.mobi, postmaster@optimumhealthcare.mobi, and postmaster@myuhc.mobi by e-mail.
On January 4, 2010, Respondent Rodney Cyr sent the following email to the Forum:
“This complaint is directed toward Rodney Cyr c/o The Environmental Coalition and is filed inappropriately. It is not against Rodney Cyr personally, who is acting on behalf of the Environmental Coalition, it should be properly filed as The Environmental Coalition c/o Rodney Cyr. The complaint must be disallowed because of misnaming the defending parties in the case and refilled (sic) properly.” The proper respondent in a domain name proceeding is the holder (registrant) of the domain name registration. Rules 1 & 3(b)(v), Uniform Domain Dispute Resolution Policy. Since Rodney Cyr is the registrant of the disputed domain names, he is the proper respondent.
Having received no formal response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <unitedhealthcare.mobi> domain name is identical to Complainant’s UNITEDHEALTHCARE mark.
Respondent’s <pacificare.mobi> domain name is identical to Complainant’s PACIFICARE mark.
Respondent’s <optimumhealthcare.mobi> domain name is confusingly similar to Complainant’s OPTIMUM CHOICE mark.
Respondent’s <myuhc.mobi> domain name is confusingly similar to Complainant’s MYUHC.COM mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names.
3. Respondent registered and used the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, provides healthcare services and has done so since 1984. Complainant offers many different healthcare services under a wide variety of trademarks owned by Complainant. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its UNITED HEALTHCARE (e.g., Reg. No. 1,967,622 issued April 16, 1996), PACIFICARE (e.g., Reg. No. 2,671,296 issued January 7, 2003), OPTIMUM CHOICE (e.g., Reg. No. 1,771,829 issued May 18, 1993), and MYUHC.COM marks (e.g., Reg. No. 2,645,558 issued November 5, 2002).
Respondent registered the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names no earlier than May 6, 2010. The disputed domain names each resolve to websites offering to sell “.mobi” domain names unrelated to Complainant. Respondent has also offered to sell the <unitedhealthcare.mobi> and <pacificare.mobi> domain names directly to Complainant for $5,000.
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 holds numerous trademark registrations with the USPTO for the UNITED HEALTHCARE (e.g., Reg. No. 1,967,622 issued April 16, 1996), PACIFICARE (e.g., Reg. No. 2,671,296 issued January 7, 2003), OPTIMUM CHOICE (e.g., Reg. No. 1,771,829 issued May 18, 1993), and MYUHC.COM marks (e.g., Reg. No. 2,645,558 issued November 5, 2002). The Panel finds Complainant has established rights in the UNITED HEALTHCARE, PACIFICARE, OPTIMUM CHOICE, and MYUHC.COM marks under Policy ¶ 4(a)(i) through its registrations with the USPTO. 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 Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant contends Respondent’s <unitedhealthcare.mobi> domain name is identical to Complainant’s
UNITED HEALTHCARE mark. The disputed
domain name contains Complainant’s entire mark, removes a space in the mark,
and simply adds the generic top-level domain (“gTLD”) “.mobi.” Previous panels have found a disputed domain
name containing a combination of a complainant’s mark and a gTLD remains
identical to a complainant’s mark under Policy ¶ 4(a)(i). See
Complainant claims Respondent’s <pacificare.mobi> domain name is identical to Complainant’s PACIFICARE mark. The disputed domain name combines Complainant’s mark with the gTLD “.mobi.” The Panel finds the disputed domain name remains identical to Complainant’s mark even after the addition of a gTLD. See supra Vanderbilt Univ. v. U Inc.; see also supra George Weston Bakeries Inc. v. McBroom. Thus, the Panel finds Respondent’s <pacificare.mobi> domain name is identical to Complainant’s PACIFICARE mark under Policy ¶ 4(a)(i).
Complainant alleges Respondent’s <optimumhealthcare.mobi> domain name is confusingly similar to Complainant’s OPTIMUM CHOICE mark. Frist, the disputed domain contains Complainant’s entire mark except for the removal of the term “choice.” The Panel finds the removal of a term from Complainant’s mark does not adequately distinguish the disputed domain name from Complainant’s mark. See Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the complainant’s ASPREY & GARRARD and MISS ASPREY marks). Second, the disputed domain name also adds the descriptive term “healthcare,” which describes Complainant’s healthcare business. The Panel finds the addition of a descriptive term is insufficient to adequately distinguish the disputed domain name from Complainant’s mark. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)). Finally, the disputed domain name adds the gTLD “.mobi.” The Panel finds the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Starkey v. Bradley, FA 874575 (Nat. Arb. Forum Feb. 12, 2007) (“The suffix .mobi should be treated the same way as .com and should be ignored when comparing the mark and the disputed domain name.”). Therefore, the Panel concludes Respondent’s <optimumhealthcare.mobi> domain name is confusingly similar to Complainant’s OPTIMUM CHOICE mark pursuant to Policy ¶ 4(a)(i).
Complainant argues Respondent’s <myuhc.mobi> domain name is identical to Complainant’s MYUHC.COM mark. The disputed domain name uses Complainant’s mark and simply exchanges the gTLD “.com” with the gTLD “.mobi.” Previous panels have found that even after the addition of a gTLD a disputed domain name remains identical to a complainant’s mark. See supra Vanderbilt Univ. v. U Inc.; see also supra George Weston Bakeries Inc. v. McBroom. Thus, the Panel finds Respondent’s <myuhc.mobi> domain name is identical to Complainant’s MYUHC.COM mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names. Past panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to the Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); 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).
Complainant asserts that Respondent has never been authorized to use the UNITED HEALTHCARE, PACIFICARE, OPTIMUM CHOICE, and MYUHC.COM marks. Complainant further provides the WHOIS information which lists the registrant of the domain names as “Rodney Cyr” or “Rodney Cyr” c/o “The Environmental Coalition.” Respondent failed to provide evidence that is commonly known by the disputed domain names. Complainant claims that Respondent is not affiliated with Complainant. Furthermore, the Panel fails to find evidence in the record suggesting that Respondent is commonly known by the disputed domain names. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent uses the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names to resolve to websites selling “.mobi” domain names. The Panel finds this use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name).
Respondent also has offered to sell the <unitedhealthcare.mobi> and <pacificare.mobi> domain names to Complainant for $5,000 for each disputed domain name. The Panel finds Respondent’s offer to sell the disputed domain names for an amount greater than Respondent’s out-of-pocket registration costs is additional evidence that Respondent had no rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). 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 Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has
offered to sell to Complainant the <unitedhealthcare.mobi> and <pacificare.mobi> domain
names for $5,000 for each domain name.
Complainant claims $5,000 exceeds Respondent’s out-of-pocket costs for
the registration of the disputed domain names.
Therefore, the Panel finds Respondent’s registration and use of the
disputed domain names for the purpose of selling the confusingly similar
disputed domain names to Complainant constitutes bad faith registration and use
under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA
933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that
the respondent registered and was using the <gwbakeries.mobi> domain name
in bad faith according to Policy ¶ 4(b)(i) where it
offered it for sale for far more than its estimated out-of-pocket costs it
incurred in initially registering the disputed domain name); see
also 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)).
Respondent likely commercially benefits from the sale of disputed domain names on the websites resolving from the <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names. Internet users interested in Complainant’s healthcare services may become confused as to Complainant’s affiliation or sponsorship of the disputed domain name and resolving website. Thus, Respondent commercially benefits from confused Internet users accessing the resolving websites. The Panel finds this use of the disputed domain names constitutes 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 DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
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 <unitedhealthcare.mobi>, <pacificare.mobi>, <optimumhealthcare.mobi>, and <myuhc.mobi> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 20, 2010
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