UnitedHealth Group Incorporated v. WhoisGuard Protected
Claim Number: FA0703000944200
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski, 2100 IDS
Center,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <unitedhealthcarenline.com> and <unitedhealthcareonlie.com>, registered with Enom, 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 20, 2007; the National Arbitration Forum received a hard copy of the Complaint on March 21, 2007.
On March 21, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. 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 March 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 12, 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@unitedhealthcarenline.com and postmaster@unitedhealthcareonlie.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch as Panelist.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names are confusingly similar to Complainant’s UNITED HEALTHCARE ONLINE mark.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names.
3. Respondent registered and used the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth
Group Incorporated, is comprised of a highly diversified family of companies
offering services in the health and well-being industry, serving approximately
fifty-nine million Americans with revenues exceeding forty-five billion dollars
annually. Complainant owns numerous
trademark registrations with the United States Patent and Trademark Office
(“USPTO”), including the UNITED HEALTHCARE ONLINE mark (Reg. No.
2,693,943 issued March 4, 2003), for use in
connection with the provision of various healthcare products.
Respondent registered both of
the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com>
domain names on July 31, 2005. Each of
Respondent’s domain names resolves to websites featuring lists of hyperlinks,
which lead to popular categories for heath care and insurance-related products,
including websites of Complainant’s competitors.
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:
(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.
Complainant asserts rights in the UNITED HEALTHCARE ONLINE
mark through registration with the USPTO.
The Panel finds that federal registration of a trademark prior to
Respondent’s registration of a disputed domain name is sufficient to establish
rights under Policy ¶ 4(a)(i). See
Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007)
(finding that the complainant had sufficiently established rights in the SKUNK
WORKS mark through its registration with the USPTO); see also Metro. Life
Ins. Co. v. Bin g Glu, FA 874496 (Nat Arb. Forum Feb. 13, 2007) (finding
rights in the METLIFE mark as a result of its registration with the
Complainant contends that Respondent’s <unitedhealthcarenline.com> and <unitedhealthcareonlie.com>
domain names are confusingly similar to Complainant’s mark. Respondent’s <unitedhealthcarenline.com> domain name contains the
dominant features of Complainant’s UNITED HEALTHCARE ONLINE mark but omits the
spaces separating the individual terms along with the letter “o” in the term
“online” and adds the generic top-level domain “.com.” Similarly, Respondent’s <unitedhealthcareonlie.com> domain
name contains the dominant features of Complainant’s mark but omits the spaces
between the individual terms along with the letter “n” from the term “online”
and adds the generic top-level domain “.com.”
The Panel finds that these minor distinctions fail to properly
distinguish Respondent’s domain names from Complainant’s mark under Policy ¶
4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in either of the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names. Under certain circumstances, Complainant’s assertion may establish a prima facie case, resulting in a burden shift from Complainant to Respondent to establish that Respondent has rights and legitimate interests in the disputed domain names. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Because Respondent has failed to respond to Complainant’s Complaint, the Panel infers that Respondent does not have rights and legitimate interests in either of the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names under Policy ¶ 4(a)(ii). See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel chooses to examine the evidence under the Policy ¶ 4(c) elements.
Complainant contends that Respondent is using the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names to resolve to websites that feature links to various competing commercial websites from which Respondent presumably receives referral fees. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ (c)(iii). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Moreover, Complainant contends that Respondent is neither
commonly known by the <unitedhealthcarenline.com>
and <unitedhealthcareonlie.com>
domain names nor authorized to register domain names featuring Complainant’s
UNITED HEALTHCARE ONLINE mark in any way.
In the absence of evidence suggesting otherwise, the Panel finds that
Respondent has not established rights or legitimate interests in accordance
with Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where
the respondent was not commonly known by the mark and never applied for a
license or permission from the complainant to use the trademarked name); see
also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) the respondent is not a licensee of
the complainant; (2) the complainant’s prior rights in the domain name precede
the respondent’s registration; (3) the respondent is not commonly known by the
domain name in question).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names to operate websites that provide Internet users with links to various competing commercial websites. The Panel finds that Respondent’s use constitutes a disruption of Complainant’s business and evinces bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. The Panel finds that use of confusingly similar domain names for Respondent’s commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unitedhealthcarenline.com> and <unitedhealthcareonlie.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: May 9, 2007
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