All Saints Home Medical, L.L.C. v. Gabrielly Santos Rodrigues / Chargepal S.L.
Claim Number: FA1603001665656
Complainant is All Saints Home Medical, L.L.C. (“Complainant”), Oklahoma, United States. Respondent is Gabrielly Santos Rodrigues / Chargepal S.L. (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allsaintshomemedical.com>, registered with PSI-USA, Inc. dba Domain Robot.
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 March 15, 2016; the Forum received payment on March 15, 2016.
On March 16, 2016, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to the Forum that the <allsaintshomemedical.com> domain name is registered with PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot 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 March 17, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 6, 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@allsaintshomemedical.com. Also on March 17, 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 April 11, 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 the ALL SAINTS HOME MEDICAL mark in connection with its business in managed care contractual services. Complainant registered the ALL SAINTS HOME MEDICAL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,973,780, first use October 8, 2008, filed October 7, 2010, registered June 7, 2011), which demonstrates rights in the mark. In addition, Complainant has common law rights in the mark due to the previous ownership of the disputed domain name since 2008. Respondent’s <allsaintshomemedical.com> domain name is identical to the ALL SAINTS HOME MEDICAL mark as it incorporates the mark in its entirety while eliminating the spacing between words and adding the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <allsaintshomemedical.com> domain name. Respondent is not commonly known by the domain name. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <allsaintshomemedical.com> domain name. Rather, the domain name resolves to a website for web traffic, redirection and auction purposes for financial gain.
Respondent is using the <allsaintshomemedical.com> domain name in bad faith. Respondent’s use of the website to attempt to sell the domain name constitutes bad faith. Further, Complainant previously held this domain name and inadvertently let the registration lapse. Weeks later, Respondent registered the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <allsaintshomemedical.com> domain name was registered on November 4, 2008.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered and subsisting 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.
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 there can be little doubt that that the disputed domain name is confusingly similar to the Complainant’s registered and subsisting trademark in which it asserts adequate rights. The Respondent arrives at the disputed domain name by merely deleting spaces and appending the gTLD “.com” to the trademark.
As such, it is clear that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel further finds that there is no evidence in the record that indicates that Respondent has any rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name. The Attached Annex 1, the WHOIS information regarding the disputed domain name, lists “Gabrielly Santos Rodriques/Chargepal S.L.” as registrant of record. The Respondent has failed to submit a response in this proceeding. Therefore, in light of the available evidence there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent’s auctioning the domain name for profit serves as bad faith pursuant to Policy ¶ 4(b)(i). See Compl., at Attached Annex 3 (“Buy this domain”). Panels have held that offering a disputed domain name for sale shows bad faith. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). Therefore, the Panel finds that Respondent registered the <allsaintshomemedical.com> domain name in bad faith under Policy ¶ 4(b)(i).
Further, Complainant asserts that Respondent registered the domain name “weeks” after Complainant’s long-time ownership of the subject domain name accidentally and inadvertently expired. See Compl., at Attached Annexes 1-2. Panels have found where the domain name has been previously used by the Complainant, subsequent registration of the domain name by anyone else indicates bad faith, absent evidence to the contrary. See Red Nacional De Los Ferrocarriles Espanoles v. Ox90, D2001-0981 (WIPO Nov. 21, 2001) (“The Panel holds that where there is an intentional registration of a domain name by one with obvious reason to believe that it might be the trademarked name of another, combined with an intentional or reckless failure to verify whether that is the case and without making even the most basic inquiry, constitutes registration of that domain name in bad faith.”); see also Hewlett-Packard Co. v. Domain ForSale, FA 103182 (Nat. Arb. Forum Feb. 7, 2002) (“[T]he fact that Complainant once held registration for the disputed domain name and that Respondent sought to capitalize on Complainant’s decision to let the registration lapse evidences bad faith registration and use under the Policy.”).
In light of the available evidence on record, the Panel finds that Complainant holds trademark rights which predate Respondent’s acquisition of the disputed domain and that such an acquisition amounts to bad faith under Policy ¶ 4(a)(iii). If Respondent had filed a Response, it may have been able to rebut this presumption because this failure to re-register the disputed domain name appears to have happened nearly a decade ago. It is not clear from this record why Complainant waited nearly a decade before bringing the present action.
Nevertheless, given the available evidence, it appears that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allsaintshomemedical.com> domain name be TRANSFERRED from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: April 16, 2016
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