Optum, Inc. v. W Allan Klindworth / Fortel
Claim Number: FA1608001691933
Complainant is Optum, Inc. (“Complainant”), represented by Julia K. Sutherland of Seyfarth Shaw LLP, Georgia, USA. Respondent is W Allan Klindworth / Fortel (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <optumanalytics.com>, registered with GoDaddy.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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 31, 2016; the Forum received payment on September 1, 2016.
On September 1, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <optumanalytics.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 September 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 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@optumanalytics.com. Also on September 1, 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 November 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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, Optum Inc., is a company providing health care benefits products and services that currently serves approximately 115 million individuals. Complainant has rights in the OPTUM mark based on use of the mark since as early as 1992 and based upon many trademark registrations, Respondent’s domain, <optumanalytics.com>, is confusingly similar to Complainant’s OPTUM mark as it includes the entire mark and adds the term “analytics”.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not a licensee of Complainant, has not had any relationship with Complainant, and is not authorized to use Complainant’s mark in any manner. Further, Respondent is using the disputed domain to operate a website hosting pay per click advertisements related to Complainant’s healthcare business which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the disputed domain name was created on December 12, 2012.
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 (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.”).
Complainant owns federal trademark registrations for OPTUMRX, registered on Oct. 9, 2012 (Reg. No. 4222564), and OPTUM, filed on Jan. 25, 2011 and registered on Aug. 5, 2014 (Reg. No. 4580412), among others. Complainant argues that Respondent’s domain is confusingly similar to the OPTUM marks in which Complainant asserts rights. Respondent’s domain <optumanalytics.com> contains the OPTUM mark and the term “analytics”. Panels have held that adding a generic or descriptive term to a mark does not differentiate the domain from the mark to which the term is attached. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).). The Panel therefore finds that Respondent’s domain is confusingly similar to the OPTUM mark under Policy ¶ 4(a)(i).
Complainant claims that Respondent is not a licensee of Complainant, has not had any relationship with Complainant, and is not authorized to use Complainant’s mark in any manner. As was stated above, Respondent has not responded to this proceeding and thus has not refuted these assertions. Panels have held that a respondent is not commonly known by a disputed domain based on a lack of authorization to use a mark and a lack of information to the contrary. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (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 that it is commonly known by the domain name). The Panel thus finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Complainant also claims that Respondent is using the disputed domain to operate a website hosting pay per click advertisements related to Complainant’s healthcare business which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s domain appears to resolve to a website parked by the registrar that hosts various links related to the healthcare industry with such titles as, “Health Insurance,” “Apply for Obamacare,” and “Healthcare Management.” Panels have held that using a domain to display advertisements is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Panels have also held that a respondent is responsible for the content of the domain even if the domain was parked. See State Farm Mut. Auto. Ins. Co. v. Pompilio, FA 1092410 (Forum Nov. 20, 2007) (“As a rule, the owner of a parked domain name does not control the content appearing at the parking site. Nevertheless, it is ultimately [the] respondent who is responsible for how its domain name is used.”). The Panel therefore concludes that Respondent’s use of the disputed domain is not within the parameters of Policy ¶ 4(c)(i) or ¶ 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent is intentionally attempting to divert internet users to Respondent’s website for commercial gain. Again, Respondent’s domain appears to resolve to a website that appears to be parked by the registrar, GoDaddy, and which displays various advertisements some of which are related to Complainant’s business. Panels have found a bad faith attempt to confuse and attract internet users for commercial gain where a respondent displayed advertisements on its disputed domain. See Staples, Inc. and Staples the Opffice Superstors, LLC v. HANNA EL HIN / DTAPLES.COM, FA 1557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Panels have also found bad faith on the part of a respondent where the domain was parked and a respondent might not have had control of the content of the parked website. See Baylor Univ. v. Red Hot Web Gems, Inc., FA 1082178 (Forum Dec. 3, 2007) (finding that, even though a respondent does not receive any revenue from the hyperlinks displayed on the website and that the revenues are received by the parking service, a respondent still registered and used the domain name in bad faith because it allowed the parking service to access the domain name, instead of resolving the webpage to a blank page). The Panel therefore finds that Respondent’s domain was registered and used in bad faith pursuant ¶ 4(b)(iv).
Thus, Complainant has also satisfied 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 <optumanalytics.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: December 12, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page