CVS Heath Corporation. and Omnicare, Inc. v. Glenna Hulett / Marcy C Miller
Claim Number: FA1709001750666
Complainant is CVS Heath Corporation. and Omnicare, Inc. (“Complainant”), represented by Sarah J Schneider of Sheridan Ross P.C., Colorado, USA. Respondent is Glenna Hulett / Marcy C Miller (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <omnicarecareer.com>, <omnicarecareers.com>, <omnicarecareerinc.com>, and <omnicarecareersinc.com>, registered with Domain.com, LLC and Google Inc.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 25, 2017; the Forum received payment on September 25, 2017.
On September 26, 2017, Domain.com, LLC and Google Inc. confirmed by e-mail to the Forum that the <omnicarecareer.com>, <omnicarecareers.com>, <omnicarecareerinc.com>, and <omnicarecareersinc.com> domain names are registered with Domain.com, LLC and Google Inc. and that Respondent is the current registrant of the names. Domain.com, LLC and Google Inc. have verified that Respondent is bound by the Domain.com, LLC and Google 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 September 29, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 19, 2017 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@omnicarecareer.com, postmaster@omnicarecareers.com, postmaster@omnicarecareerinc.com, and postmaster@omnicarecareersinc.com. Also on September 29, 2017, 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 October 24, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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 names be transferred from Respondent to Complainant.
A. Complainant
i) Complainant is a Fortune 500 company and the market-leader in professional pharmacy, related consulting and data management services for skilled nursing, assisted living and other chronic care institutions. Complainant registered the OMNICARE mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,115,834, registered Nov. 25, 1997). Respondent’s domain names are confusingly similar to Complainant’s mark as they each include Complainant's registered mark in its entirety and merely include various combinations of the generic terms “career,” “careers,” and “inc,” along with the generic top-level domain (“gTLD”) “.com.”
ii) Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use Complainant’s OMNICARE mark for any purpose. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is engaged in a complex phishing scheme to obtain personal information and money from people who apply for job postings on ZipRecruiter and other third party employment opportunity websites by passing itself off as Complainant. Respondent fails to make any active use of the resolving websites of each domain name.
iii) Respondent registered and uses the disputed domain names in bad faith. Respondent is engaged in a pattern of bad faith under Policy ¶ 4(b)(ii) by registering several domain names which infringe on Complainant’s mark. Respondent has engaged in bad faith according to the language of Policy ¶ 4(b)(iv) because it has engaged in a scheme to disseminate scam job offers to Internet users to collect and exploit personal information. Respondent had actual or constructive knowledge of Complainant and its rights in the OMNICARE mark and clearly registered the domain names in bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the domain names on the following dates: <omnicarecareer.com> (Apr. 24, 2017), <omnicarecareers.com> (Apr. 24, 2017), <omnicarecareerinc.com> (May 10, 2017), and <omnicarecareersinc.com> (May 11, 2017).
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names in bad faith.
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."
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that Respondent is one and the same individual because all of the domain names use the same format; they were registered within sixteen (16) days of each other; three (3) of the domain names are registered with the same registrar; three (3) of the domain names were registered by “Glenna Hulett” and the fourth one, <omnicarecareerinc.com>, lists “Marcy C. Miller” as the registrant; and all of the domain names are being used to further the same job phishing scam.
The Panel finds that Complainant has sufficiently presented evidence demonstrating that the listed entities are jointly controlled. As the Panel so finds,
it determines that all of the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
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 claims it registered the OMNICARE mark with the USPTO (e.g. Reg. No. 2,115,834, registered Nov. 25, 1997). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the OMNICARE mark.
Complainant next argues that Respondent’s disputed domain names are confusingly similar to Complainant’s mark as they each include Complainant's registered mark in its entirety and merely include various combinations of the generic terms “career,” “careers,” and “inc,” along with the gTLD “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the domain names are confusingly similar to the OMNICARE mark for the purposes of Policy ¶4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (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 UDRP ¶ 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 AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006)
(“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
names.”).
Complainant argues that Respondent has no rights or legitimate interests in the domain name. Complainant contends that Respondent is not commonly known by the disputed domain, nor has Complainant authorized Respondent to use the OMNICARE mark in a domain name. Where no response is on record, WHOIS information is looked to in determining Policy ¶ 4(c)(ii) along with a complainant’s assertions. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). The Panel notes that the WHOIS lists “Glenna Hulett / Marcy C Miller” as registrant of record. Coupled with Respondent’s lack of a Response and Complainant’s assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by <omnicarecareer.com>, <omnicarecareers.com>, <omnicarecareerinc.com>, and <omnicarecareersinc.com> per Policy ¶ 4(c)(ii).
Further, Complainant argues that Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is allegedly engaged in a complex phishing scheme to obtain personal information and money from people who apply for job postings on ZipRecruiter and other third party employment opportunity websites by passing itself off as Complainant. The Panel notes Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). While the instant dispute concerns factual circumstances virtually identical to Virtu Financial Operating, LLC, the Panel agrees that no rights or legitimate interests exist for Respondent.
Additionally, Complainant argues <omnicarecareer.com>, <omnicarecareers.com>, <omnicarecareerinc.com>, and <omnicarecareersinc.com> resolves to blank webpages. Where no legitimate content is associated with a domain name, no rights or legitimate interests may exist. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant asserts that there is no legitimate content associated with the domain names, thus the Panel agrees that Respondent’s use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered and uses the disputed domain names in bad faith. Complainant argues that Respondent is engaged in a pattern of bad faith under Policy ¶ 4(b)(ii) by registering several domain names which infringe on Complainant’s mark. Similarly, in Radisson Hotels Internation, Inc. v. Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / Denliyan, FA1504001615349 (Forum June 1, 2015), four domain names were registered by the respondent, “which all infringe on Complainant’s mark, constitut[ing] bad faith under Policy ¶ 4(b)(ii).” While four domain names are registered by Respondent in the instant dispute, the Panel agrees that a pattern indeed exists under Policy ¶ 4(b)(ii).
Next, Complainant argues that Respondent has engaged in bad faith according to the language of Policy ¶ 4(b)(iv) because it has engaged in a scheme to disseminate scam job offers to Internet users to collect and exploit personal information. A similar situation was presided over in Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the disputed domain name to send emails to Internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process). The Panel recalls Exhibit G, wherein Respondent purportedly solicits Internet users seeking a job for their personal information under the guise of offering employment opportunities. The Panel agrees that this is demonstrative of bad faith under Policy ¶ 4(b)(iv).
Complainant contends Respondent registered the domain name with actual and/or constructive knowledge of the OMNICARE mark and Complainant’s rights. Panels look to a totality of circumstances in making findings of actual knowledge, while disregarding contentions of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014)
(“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Here, Respondent has incorporated Complainant’s mark entirely within several domain names, and solicits Internet users for employment with Complainant specifically. Accordingly, the Panel agrees that Respondent must have had actual knowledge in the OMNICARE mark and Complainant’s rights when registering the mark—bad faith per 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 <omnicarecareer.com>, <omnicarecareers.com>, <omnicarecareerinc.com>, and <omnicarecareersinc.com> domain names be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: October 26, 2017
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