Medica Health Plans v. Medica
c/o Domain Administrator
Claim Number: FA0702000919469
PARTIES
Complainant is Medica Health Plans (“Complainant”), represented by Eric
D. Paulsrud, of Leonard, Street and Deinard,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <medicahealthplan.com>, registered
with Nameview,
Inc.
PANEL
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.
Debrett Lyons as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on February 18, 2007; the
National Arbitration Forum received a hard copy of the Complaint on February 20, 2007.
On February 21, 2007, Nameview, Inc. confirmed by e-mail to the
National Arbitration Forum that the <medicahealthplan.com> domain name is
registered with Nameview, Inc. and that
the Respondent is the current registrant of the name. Nameview, Inc.
has verified that Respondent is bound by the Nameview,
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 February 23, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of March 15, 2007, 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@medicahealthplan.com by
e-mail.
A timely Response was received and determined to be complete on March 8, 2007.
On March 14, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Debrett Lyons as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PRELIMINARY ISSUE
In this case the Respondent’s activities might be described as “cyberflying,” a term for the practice of changing the registrant of a domain name before or during a UDRP proceeding in an attempt to disrupt the proceeding and circumvent the Policy. Earlier panels have characterized this practice as evidence of bad faith.
When the Complainant filed its
Complaint on February 20, 2007, the WHOIS information for the disputed domain name identified the Respondent as
“MEDICAHEALTHPLAN.COM c/o Whois IDentity Shield.”
Shortly,
thereafter, this WHOIS information was updated to indicate “Medica” as the
registrant of the disputed domain name. In
consequence, the Complainant was required to amend the Complaint to effectively
indicate itself as the Respondent.
To
quote from the Complaint :
“Although
the Respondednt is identified as “Medica” rather then “Medica Health Plus”, the
formal name of the Complainant, the contact information associated with the
Respondent’s registration is, for the most part, the accurate and valid contact
information of Complainant. The address given for Respondent is the former
address of Complainant. The email contact for Respondent, [ name omitted
], is an officer of Complainant, and the person responsible for
Complainant’s domain name registrations.
As such, Respondent and Complainant should be viewed as one and the same
in the present case.”
Nonetheless,
the Complainant does not have access to the domain name and for that reason
petitions for its transfer.
Very similar scenarios to that just described have received the attention of earlier panels.
In the case of Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004), the panelist there observed :
“Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 this case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”
See also the decisions of Boehringer Ingelheim Int’l GmbH v. Modern Ltd. - Cayman Web Dev., FA 133625 (Nat. Arb. Forum, Jan. 9, 2003); Alstyle Apparel/Active Wear v. Schwab, FA 170616 (Nat. Arb. Forum, Sept. 5, 2003) and Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005).
Whilst
this Panel is aware that the facts here invite a number of questions concerning
interpretation of the Policy, it is also conscious that the overriding
intention of the Policy was to provide a quick and relatively cheap alternative
to court proceedings to combat abusive domain name registrations. Mindful of that intention, the Panel is
satisfied that there is evidence in this case of a single desire to transfer
ownership and control of the disputed domain name to the Complainant.
DECISION
It is accordingly Ordered that the <medicahealthplan.com> domain name be
TRANSFERRED to the Complainant, namely, Medica Health Plans, of
Debrett Gordon Lyons, Panelist
Dated : March 22, 2007
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