eHealthInsurance Services,
Inc. v. Mohammed Hasan
Claim Number: FA0705000982289
PARTIES
Complainant is eHealthInsurance Services, Inc. (“Complainant”), represented by Francine
Hanson, of Wilson Sonsini Goodrich & Rosati,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwehealthinsurance.com>, registered
with Lead
Networks Domains Pvt. Ltd.
PANEL
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on May 14, 2007; the
National Arbitration Forum received a hard copy of the Complaint on May 14, 2007.
On May 21, 2007, Lead Networks Domains Pvt. Ltd. confirmed by
e-mail to the National Arbitration Forum that the <wwwehealthinsurance.com>
domain name is registered with Lead Networks
Domains Pvt. Ltd. and that Respondent is the current registrant of the
name. Lead
Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 May 29, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of June 18, 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@wwwehealthinsurance.com by e-mail.
The National Arbitration Forum did not receive an electronic copy of
the Response until after the Response deadline.
Therefore, the Response is deficient according to ICANN Rule #5 and the
National Arbitration Forum’s Supplemental Rule 5(a).
Complainant filed an Amended Complaint dated May 24, 2007.
On June 25, 2007, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant avers that it is the leading provider of online health
insurance for individuals, families and small businesses. It was incorporated in 1997 and is licensed to
market and sell health insurance in all 50 of the
Complainant has been using the EHEALTH mark since as early as May 1997
and the EHEALTHINSURANCE mark since at least as early as August 1998, and it
holds
Complainant has developed substantial goodwill in the EHEALTH and
EHEALTHINSURANCE marks. Those marks have
become closely linked with Complainant.
Complainant further avers that Respondent registered the challenged
domain name <wwwehealthinsurance.com>
on March 16, 2004, and its domain name is virtually identical to Complainant’s
EHEALTHINSURANCE mark and mimics Complainant’s URL address. The challenged domain name is an unmistakable
misspelling of Complainant’s domain name <wwwehealthinsurance.com>
and of its mark EHEALTHINSURANCE.
Complainant further avers that upon information and belief, Respondent
registered <wwwehealthinsurance.com>
as part of a “click-through” advertising scheme, and that when Internet
users “click” on the paid links displayed on Respondent’s site, Respondent
receives a payment from the third-party advertisers who are paying for the
service.
B. Respondent
In the most general terms, Respondent replies that Complainant has not
approached the Forum with clean hands and therefore no relief, much less,
equitable, should be granted to Complainant.
Respondent states that he is in the business of providing Medical
Insurance and is an agent of Medicalim in
Respondent states that he has registered the domains as a result of the
suggestions made on the registrar’s website, and holds the registrar fully
responsible for putting such tools on their website.
Respondent avers that he is using the domain for legitimate use; that
he does not have a website at present and hence is not gaining any customers
for commercial gain, or misleading any customers for commercial gain or
tarnishing Complainant’s trademark.
FINDINGS
(1) the domain name registered by Respondent is
identical or confusingly similar to a trademark or service mark in which
Complainant has rights;
(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
DISCUSSION
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.”
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;
(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.
Preliminary Issue: Deficient
Response
The National
Arbitration Forum did not receive an electronic copy of the Response until
after the Response deadline. Therefore,
the Response is deficient according to ICANN Rule #5. Since the Response is deficient, the
Panel does not have to consider it in making its decision, but it is within the
Panel’s discretion whether or not to take the Response into account. See
Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Nat. Arb. Forum Mar. 5, 2007); see also Metro. Life Ins. Co. v. Secure Whois Info. Serv., FA
910715 (Nat. Arb. Forum Mar. 16, 2007). The
Panel deems any procedural deficiencies to be inconsequential and will consider
the Response.
Complainant has provided evidence that it has registered the following marks with the United States Patent and Trademark Office (“USPTO”): EHEALTH (Reg. No. 2,180,628 issued August 11, 1998) and EHEALTHINSURANCE (Reg. No. 2,394,766 issued October 17, 2000). The Panel considers these trademark registrations as evidence of Complainant’s rights in the marks pursuant to Policy ¶ 4(a)(i). See FIA Card Servs., Nat’l Ass’n v. Impulse Mktg. Group, Net OPS, FA 944261 (Nat. Arb. Forum June 18, 2007) (holding that the complainant’s trademark registrations for the PLATINUM PLUS and WORLD CLASS PLATINUM PLUS marks, which it held with the USPTO, demonstrated its rights in the marks pursuant to Policy ¶ 4(a)(i)); see also Morgan Stanley v. Fitz-James (CT2341-RSC) Cititrust Group Ltd., FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (“The Panel finds from a preponderance of the evidence that Complainant has registered its mark with national trademark authorities. The Panel has determined that such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Complainant alleges that
Respondent’s <wwwehealthinsurance.com>
domain name is meant to take advantage of a typographical error Internet users
make when entering its registered EHEALTHINSURANCE mark into Complainant’s own <ehealthinsurance.com>
domain name. The Panel finds that the
additions of “www” and the generic top-level domain “.com” to Complainant’s
mark in the disputed domain name fail to significantly differentiate the <wwwehealthinsurance.com> domain
name from the EHEALTHINSURANCE mark, which renders the disputed domain name
confusingly similar to the mark according to Policy ¶ 4(a)(i). See Neiman Marcus Group, Inc. v. S1A,
FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been
established because the prefix “www” does not sufficiently differentiate the
<wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS
mark); see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA
117328 (Nat. Arb. Forum Nov. 19, 2002) (finding the respondent's
<wwwdana.com> domain name confusingly similar to the complainant's
registered DANA mark because the complainant's mark remains the dominant
feature).
Complainant bears the initial responsibility
of making a prima facie case that Respondent lacks rights and legitimate
interests in the disputed domain name.
The Panel finds that Complainant has made a prima facie case, and the burden of proof then shifts to Respondent
to allege what rights or legitimate interests it might have in the disputed
domain name. See Document Tech., Inc. v.
Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although
Paragraph 4(a) of the Policy requires that the Complainant prove the presence
of this element (along with the other two), once a Complainant makes out a prima
facie showing, the burden of production on this factor shifts to the
Respondent to rebut the showing by providing concrete evidence that it has
rights to or legitimate interests in the Domain Name.”).
Complainant contends that Respondent is not commonly known by the disputed domain name. The Panel finds that there is no evidence in the record suggesting that Respondent is commonly known by the <wwwehealthinsurance.com> domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant further contends that Respondent’s website at the <wwwehealthinsurance.com> domain name is simply a pay-per-click website with links to Complainant’s competitors in the health insurance industry. The Panel presumes that Respondent is earning click-through fees for diverting Internet users to these competing websites and finds that such use for Respondent’s own commercial gain does not constitute a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). See Royal Bank of Scot. Group plc v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006).
The disputed domain name simply omits the period between “www” and Complainant’s EHEALTHINSURANCE mark, and the Panel finds that Respondent is engaged in the practice of typosquatting, which represents a lack of rights and legitimate interests on the part of Respondent under Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003).
Respondent’s website at the <wwwehealthinsurance.com> domain name resolves to a pay-per-click website with links to Complainant’s competitors in the health insurance industry. The Panel finds that Respondent is disrupting Complainant’s business under the EHEALTHINSURANCE mark, which merits a finding of bad faith registration and use under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007).
Respondent’s use of the disputed domain name to operate a pay-per-click website is indicative of bad faith registration and use pursuant to Policy ¶ 4(b)(iv) because Respondent is profiting from click-through fees each time an Internet user clicks on one of the links that redirect them to websites competing with Complainant. See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002).
Given that the <wwwehealthinsurance.com> domain name is simply a misspelling of Complainant’s EHEALTHINSURANCE mark, the Panel finds that Respondent is attempting to take advantage of the mistakes that Internet users make when entering Complainant’s mark into the <ehealthinsurance.com> domain name. This type of activity is known as typosquatting, and the Panel concludes that it demonstrates bad faith registration and use under Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003).
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwehealthinsurance.com> domain name
be TRANSFERRED from Respondent to Complainant.
Dated: July 9, 2007
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