Cerner Corporation v. ye / ye fei
Claim Number: FA1512001653942
Complainant is Cerner Corporation (“Complainant”), represented by Leonard Searcy of Shook, Hardy & Bacon LLP, Missouri, United States. Respondent is ye / ye fei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cernerhealth.co>, registered with Todaynic.com, Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 23, 2015; the Forum received payment on December 31, 2015.
On January 5, 2016, Todaynic.com, Inc. confirmed by e-mail to the Forum that the <cernerhealth.co> domain name is registered with Todaynic.com, Inc. and that Respondent is the current registrant of the name. Todaynic.com, Inc. has verified that Respondent is bound by the Todaynic.com, Inc. 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 January 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2016 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@cernerhealth.co. Also on January 5, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant uses its CERNER HEALTH mark in connection with its business of consulting with and producing, marketing, and selling computer software and devices in the hospital and health industry. Complainant has registered the CERNER HEALTH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,568,686, registered July 15, 2014), which demonstrates Complainant’s rights in its mark. Attached Exhibit 3I of Annex 3 shows a copy of Complainant’s USPTO registration. The <cernerhealth.co> domain is confusingly similar to Complainant’s mark as it incorporates Complainant’s mark in its entirety, eliminates the spacing between the words of Complainant’s mark, and adds the country-code top-level domain (“ccTLD”) “.co.”
Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not make a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain resolves to an inactive webpage. The Panel is directed to Attached Exhibit 2D of Annex 2 for a screenshot of Respondent’s resolving webpage.
Respondent has registered and is using the disputed domain name in bad faith. First, Respondent has failed to make any active use of the disputed domain. Second, Respondent has engaged in the tactic of typosquatting. Finally, Respondent registered the disputed domain with actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on September 15, 2015.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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."
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.
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(f), 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.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark. The Complainant has adequately plead its interests in or to the registered trademark sufficient to support its claim here. To arrive at the disputed domain name, Respondent merely eliminates the spacing between the words of Complainant’s mark and adds the country-code top-level domain (“ccTLD”) “.co.”
This is insufficient to distinguish the disputed domain name from the Complainant’s registered trademark. As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel also finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. The Respondent is not known by the disputed domain name and it wasn’t given permission to register the disputed domain name.
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain resolves to an inactive webpage. Attached Exhibit 2D of Annex 2 is a screenshot of Respondent’s resolving webpage. Failure to make any active use of a domain does not constitute 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).
As such, the Panel finds that Respondent has not rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that the Respondent engaged in bad faith use and registration of the disputed domain name.
Complainant contends that Respondent has engaged in the tactic of typosquatting. In so arguing, Complainant alleges that Respondent uses its domain to take advantage of a common Internet user’s mistake, inadvertently omitting the “m” in “.com.” Previous panels have found evidence of bad faith where a respondent’s domain was merely a typosquatted version of a complainant’s mark. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).
As such, the Panel finds that Respondent registered and is using the disputed domain in bad faith per Policy ¶ 4(a)(iii).
Because of Complainant’s longstanding trademark registrations and Respondent’s use of the disputed domain, Complainant alleges that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. A respondent demonstrates bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Accordingly, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark, thereby violating Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cernerhealth.co> domain name be TRANSFERRED from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: February 1, 2016
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