Project HOPE - The People-to-People Health Foundation, Inc. v. James Smith
Claim Number: FA1102001373546
Complainant is Project HOPE - The People-to-People Health Foundation, Inc (“Complainant”), represented by Margaret Esquenet of Finnegan, Henderson, Farabow, Garret & Dunner, L.L.P., Washington D.C., USA. Respondent is James Smith (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <healthaffairs.net>, registered with Snoqulamiedomains.com LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2011; the National Arbitration Forum received payment on February 17, 2011.
On February 18, 2011, Snoqulamiedomains.com LLC confirmed by e-mail to the National Arbitration Forum that the <healthaffairs.net> domain name is registered with Snoqulamiedomains.com LLC and that Respondent is the current registrant of the name. Snoqulamiedomains.com LLC has verified that Respondent is bound by the Snoqulamiedomains.com LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 22, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@healthaffairs.net. Also on February 22, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 17, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <healthaffairs.net> domain name is identical to Complainant’s HEALTH AFFAIRS mark.
2. Respondent does not have any rights or legitimate interests in the <healthaffairs.net> domain name.
3. Respondent registered and used the <healthaffairs.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Project HOPE - The People-to-People Health Foundation, Inc., is a global provider of healthcare services. Complainant focuses its efforts on health education programs and humanitarian aid. Complainant’s business is operated under the HEALTH AFFAIRS mark which is registered with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,591,960 issued April 17, 1990).
Respondent, James Smith, registered the disputed domain name on April 24, 2010. The disputed domain name resolves to a website featuring links to Complainant’s competitors in the healthcare industry.
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 asserts rights in the HEALTH AFFAIRS mark based on its registration of the mark with the USPTO (e.g., Reg. No. 1,591,960 issued April 17, 1990). Previous panels have found that registration of a mark with a federal trademark authority establishes rights in the mark. Therefore, the Panel finds that Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See 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)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
Complainant contends that Respondent’s <healthaffairs.net> domain name is identical to Complainant’s HEALTH AFFAIRS mark. Respondent used Complainant’s entire mark and merely removed the space between the terms of the mark and added the generic top-level domain (“gTLD”) “.net” to the end of Complainant’s mark. The Panel finds that removing the space between the terms of an established mark, in addition to incorporating a gTLD, are alterations that do not distinguish the disputed domain name from Complainant’s mark under Policy ¶ 4(a)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the space between terms of a mark still rendered the <gwbakeries.mobi> domain name identical to the complainant’s GW BAKERIES mark); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant possesses the burden of making a prima facie showing in support of this allegation. After Complainant has met its burden, the burden then shifts to Respondent. Complainant has met its burden and Respondent, in failing to respond to these proceedings, has not presented any evidence that would support a finding of rights or legitimate interests in the disputed domain name. The Panel presumes that Respondent does not possess rights or legitimate interests and that Complainant’s allegations may be taken as true. However, the Panel chooses to examine the record, pursuant to Policy ¶ 4(c), in order to determine whether Respondent has any rights or legitimate interests in the <healthaffairs.net> domain name. 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 Policy ¶ 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 Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
Complainant also alleges that Respondent is not commonly known by the <healthaffairs.net> domain name and that Respondent is not authorized to use the HEALTH AFFAIRS mark. The Panel examined the record and can find no evidence that would support a finding that Respondent is commonly known by the disputed domain name. Additionally, the WHOIS information lists the registrant of the disputed domain name as “James Smith” which Complainant alleges is not similar to the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel determines that Respondent is not commonly known by the <healthaffairs.net> domain name. See 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); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
Complainant argues that Respondent’s domain name resolves to a website that is used to post links to Complainant’s healthcare competitors. The hyperlinks presumably generate click-through fees for Respondent in return for redirecting Internet traffic to third-party websites that compete with Complainant. The Panel finds that Respondent’s use of a confusingly similar domain name to post such hyperlinks is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the use of the disputed domain name to operate a website displaying links to competing goods and services was 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 also Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (holding that the respondent’s use of the contested domain name to maintain a commercial website with links to the products and services of the complainant’s competitors did 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 established.
Respondent is using the disputed domain name and the resolving website to post links to various third-party websites, some of which compete with Complainant in the healthcare industry. Respondent’s inclusion of hyperlinks to Complainant’s competitors negatively affects Complainant’s business because Internet users searching for and intending to find Complainant’s website may end up at the websites of Complainant’s competitors based on Respondent’s bad faith registration and use of the disputed domain name. The Panel finds that such use disrupts Complainant’s business which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii); 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)).
Lastly, Complainant contends that Respondent’s domain name, which is identical to Complainant’s mark, diverts Internet users to Respondent’s website. Because of this diversion, Complainant argues that Internet users are confused as to Comlpainant’s sponsorship of and affiliation with the resolving website and posted hyperlinks. The Panel presumes that Respondent benefits from this confusion through the receipt of click-through fees which leads the Panel to conclude that Respondent has engaged in bad faith registration and use of the <healthaffairs.net> domain name pursuant to 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 Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <healthaffairs.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 25, 2011
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