Centura Health Corporation v. Jasper Developments c/o domain manager
Claim Number: FA0607000751616
Complainant is Centura Health Corporation (“Complainant”), represented by Miriam Trudell, of Sheridan Ross P.C., 1560 Broadway, Suite 1200, Denver, CO 80202. Respondent is Jasper Developments c/o domain manager (“Respondent”), GPO Box 1188, Melbourne VIC 3001 AU.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <centurahealth.org>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 14, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 17, 2006.
On July 17, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <centurahealth.org> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 9, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@centurahealth.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the CENTURA HEALTH mark (Reg. No. 2,131,776 issued January 27, 1998) in connection with health care services, hospital services, hospice services, medical services and the provision of information in the fields of medicine and health care.
Respondent registered the <centurahealth.org> domain name on June 11, 2003.
Respondent is using the disputed domain name to redirect Internet users to Respondent’s commercial website that features links to competing third-party health care related websites.
Respondent’s <centurahealth.org> domain name is identical to Complainant’s CENTURA HEALTH mark.
Respondent is neither commonly known by the <centurahealth.org> domain name nor authorized by Complainant to use a domain name featuring its mark.
Respondent does not have any rights or legitimate interests in the <centurahealth.org> domain name.
Respondent registered and used the <centurahealth.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a 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 same domain name was registered and is being used by Respondent 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."
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(e), 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.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant submitted evidence of its registration of the
CENTURA HEALTH mark with the USPTO.
Such evidence establishes Complainant’s rights in the mark pursuant to
Policy ¶ 4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.” See also Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11,
2003): “Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.”
Respondent’s <centurahealth.org>
domain name is identical to Complainant’s CENTURA
HEALTH mark in that the name incorporates
Complainant’s mark in its entirety, adding only the generic top-level domain
“.org.” The addition of a generic
top-level domain to a mark does not negate the identity between that mark and a
competing domain name. Thus, the
disputed domain name is identical to Complainant’s mark pursuant to Policy ¶
4(a)(i). See Porto Chico Stores, Inc. v. Zambon, D2000-1270 (WIPO
Nov. 15, 2000) (stating that a panel should resolve the question whether a mark
is identical or confusingly similar to a challenged domain name “by comparing
the trademark and the disputed domain name, without regard to the circumstances
under which either may be used”); see also Pomellato S.p.A v.
Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com>
identical to a complainant’s mark because the generic top-level domain (gTLD)
“.com” after the name POMELLATO is not relevant).
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has established that it has rights to and legitimate interests in the mark contained in its entirety in the disputed domain name, and Complainant alleges that Respondent has no such rights. Under Policy ¶ 4(a)(ii), the burden is on Complainant to demonstrate that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made out a prima facie case to this effect, the burden shifts to Respondent to show that it does have rights or legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):
Proving that the Respondent has no rights or legitimate interests in
respect of the Domain Name requires the Complainant to prove a negative. For
the purposes of this sub paragraph, however, it is sufficient for the Complainant
to show a prima facie case and the burden of proof is then shifted on to the
shoulders of Respondent. In those
circumstances, the common approach is for respondents to seek to bring
themselves within one of the examples of paragraph 4(c) or put forward some
other reason why they can fairly be said to have a relevant right or legitimate
interests in respect of the domain name in question.
In this instance, it is undisputed that Respondent is using
the <centurahealth.org> domain name to redirect Internet users to
Respondent’s commercial website which features links to third-party websites
which compete with Complainant’s business.
Respondent’s use of a domain name identical to Complainant’s CENTURA
HEALTH mark to redirect Internet users interested in Complainant’s services to
a website that offers links to services in competition with those of
Complainant is not a use in connection with a bona fide offering of
goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial
or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Coryn
Group, Inc. v. Media Insight, FA 198959
(Nat. Arb. Forum Dec. 5, 2003) (finding that a respondent was not using
contested domain names for a bona fide offering of goods or services nor
a legitimate noncommercial or fair use because that respondent used the names
to divert Internet users to websites that offered services competing with those
offered by a complainant under its marks); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat.
Arb. Forum Dec. 1, 2003) (finding that a respondent was not using a domain name
within the parameters of Policy ¶ 4(c)(i) or (iii) because that respondent used
the domain name to take advantage of a complainant's mark by diverting Internet
users to a competing commercial site).
Moreover, Complainant asserts, without contradiction from Respondent, that Respondent is neither commonly known by the <centurahealth.org> domain name nor authorized by it to use a domain name featuring Complainant’s mark. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) a respondent is not a licensee of a complainant; (2) a complainant’s prior rights in the domain name precede that respondent’s domain name registration; (3) that respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where a respondent was not commonly known by the mark there in issue and never applied for a license or permission from a complainant to use the trademarked name).
The Panel thus finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent acted in bad faith in registering and using a domain name that contains Complainant’s protected mark in its entirety. There is no evidence in the record to refute Complainant’s allegation that Respondent uses the domain name <centurahealth.org> to redirect Internet users to Respondent’s commercial website that features links to competing third-party websites. Such use constitutes evidence of bad faith registration and use under to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that a respondent acted in bad faith by attracting Internet users to a website that competes with a complainant’s business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that a respondent diverted business from a complainant to a competitor’s website within the meaning of Policy ¶ 4(b)(iii)).
Based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to a website offering links to competing health care services. Respondent’s domain name incorporating Complainant’s mark may create confusion as to the possibility of Complainant’s affiliation with the disputed domain name and related website. Thus, Respondent’s use of the <centurahealth.org> domain name amounts to bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if a respondent profits from its diversionary use of a complainant’s mark when the domain name resolves to commercial websites and that respondent fails to contest the complaint in a UDRP proceeding, it may be concluded that that respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where a respondent directed Internet users seeking a complainant’s site to its own website for commercial gain).
Finally, it is evident that Respondent registered the
contested domain name with actual or constructive knowledge of Complainant’s
rights in the CENTURA HEALTH mark by virtue of Complainant’s prior registration
of its mark with the USPTO.
Registration of an identical or confusingly similar domain name despite
such actual or constructive knowledge evidences bad faith registration and use
of the domain name pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24,
2002); see also Orange Glo Int’l v.
Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <centurahealth.org> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 24, 2006
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