Cerner Corporation v. Arkadiusz Kowalczyk
Claim Number: FA1812001822249
Complainant is Cerner Corporation (“Complainant”), represented by Leonard Searcy of Shook, Hardy & Bacon LLP, Missouri, USA. Respondent is Arkadiusz Kowalczyk (“Respondent”), Poland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mycerner.com>, registered with PSI-USA, Inc. dba Domain Robot.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 21, 2018; the Forum received payment on December 21, 2018.
On December 27, 2018, PSI-USA, Inc. dba Domain Robot confirmed by e-mail to the Forum that the <mycerner.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 December 31, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 22, 2019 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@mycerner.com. Also on December 31, 2018, 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 January 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it engages in the business of consulting with and producing, marketing, and selling computer software and devices in the hospital and health industry. Complainant has rights in the CERNER mark based upon its registration of the mark in the United States in 1987.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s CERNER mark, as the domain name incorporates the mark in its entirety and adds the generic prefix “my” along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the CERNER mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent attempts to commercially gain by hosting a webpage that contains links to Complainant’s direct competitors in the healthcare industry. Furthermore, Respondent registered the disputed domain name in an attempt to pass off as Complainant.
Further, says Complaint, Respondent registered and is using the disputed domain name in bad faith. Respondent intends to disrupt Complainant’s business by passing off as Complainant. Furthermore, Respondent operates a webpage containing links to Complainant’s competitors from which Respondent receives referral fees. Finally, Respondent had actual and/or constructive knowledge of Complainant’s rights in the mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark CERNER dating back to 1987.
The disputed domain name was registered in 2005.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains links to products and services that compete with those of Complainant.
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.”).
The disputed domain name is confusingly similar to the CERNER mark, as the name incorporates the mark in its entirety plus the generic prefix “my” and the “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Panel finds that the <mycerner.com> domain name is confusingly similar to the CERNER mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Arkadiusz Kowalczyk.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead the name resolves to a website which is being used to obtain click-through revenue by linking to third-party websites, some of which compete with Complainant’s business. Use of a domain name to link to a complainant’s competitors is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (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 where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to link to third party websites, some of which compete with Complainant’s business. Use of a domain name to resolve to a page of third-party links, including competitive links, can demonstrate a respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (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.”). The Panel therefore finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mycerner.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 23, 2019
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