UnitedHealth Group Incorporated v. Webmaster
Claim Number: FA0705000991993
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Timothy
M. Kenny, of Fulbright & Jaworski, 2100 IDS Center,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <unitedhealthpacificare.com>, registered with Cydentity, Inc. d/b/a Cypack.com.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June 5, 2007, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 25, 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@unitedhealthpacificare.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <unitedhealthpacificare.com> domain name is confusingly similar to Complainant’s UNITEDHEALTH and PACIFICARE marks.
2. Respondent does not have any rights or legitimate interests in the <unitedhealthpacificare.com> domain name.
3. Respondent registered and used the <unitedhealthpacificare.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, is the 37th
largest corporation in the
In 2005, Complainant merged with PacifiCare Health Systems, Inc., creating a wholly-owned subsidiary under that name. Through its predecessors-in-interest, Complainant has continuously and extensively used the PACIFICARE mark in reference to health care products and services since at least 1978 and has maintained a website at the <pacificare.com> domain name since 1995.
Complainant holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for a variety of marks containing the term “UNITEDHEALTH,” including UNITEDHEALTH GROUP (Reg. No. 2,635,728 issued October 15, 2002), UNITEDHEALTHCARE (Reg. No. 1,967,622 issued April 16, 1996), UNITEDHEALTHCARE ONLINE (Reg. No. 2,693,943 issued March 4, 2003), and UNITEDHEALTH PASSPORT (Reg. No. 2,248,887 issued June 1, 1999). Complainant also holds registrations for the PACIFICARE mark (Reg. No. 1,323,908 issued March 5, 1985; Reg. No. 2,671,296 issued January 7, 2003) and related marks in which “PACIFICARE” is the predominant term.
Complainant announced its merger with PacificCare Health
Systems, Inc. on
We are a domain agent. This domain is on sale for just $5000 USD now. You can buy it for just that price without any conditions. In case of lawsuit, it will take about 3-4 years and you have to consider more TWENTY times the money.
Respondent has not made any use of the disputed domain name other than to offer it for sale on this website. When Complainant sent a cease-and-desist letter to Respondent, Respondent allegedly replied that it was willing to sell the disputed domain name to Complainant for $5,000, and that it would take legal action against Complainant in a Korean court if Complainant initiated any legal actions against Respondent.
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’s numerous trademark registrations with the
USPTO for its family of UNITEDHEALTH and PACIFICARE marks sufficiently
establishes its 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 Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum
Respondent’s <unitedhealthpacficare.com>
domain name contains the predominant portion of Complainant’s UNITEDHEALTHCARE
mark and merely omits the term “care.”
The disputed domain name also contains Complainant’s registered
PACIFICARE mark and the generic top-level domain (“gTLD”) “.com.” In Seagate Technologies LLC v. Zhanfeng, FA 635276 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
According to Policy ¶ 4(a)(ii), Complainant bears the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the <unitedhealthpacificare.com> domain name. Once Complainant establishes a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case in the instant proceeding. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant under Policy ¶ 4(c), the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires that the complainant must show that the respondent has no rights to or legitimate interests in the subject domain name and that once the complainant makes this showing, the burden of production shifts to the respondent to rebut the complainant’s allegations).
Respondent has not responded to this Complaint. The Panel considers this as evidence that it
lacks rights and legitimate interests in the <unitedhealthpacificare.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum
There is no evidence in the record indicating that
Respondent is commonly known by the <unitedhealthpacificare.com>
domain name. The WHOIS database
lists “Webmaster” as the registrant, and Complainant asserts that it has not
authorized or licensed Respondent to register this domain name. Consequently, the Panel finds that Respondent
is not commonly known by the disputed domain name pursuant to Policy ¶
4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007)
(concluding that the respondent was not commonly known by the
<lilpunk.com> domain name as there was no evidence in the record showing
that the respondent was commonly known by that domain name, including the WHOIS
information as well as the complainant’s assertion that it did not authorize or
license the respondent’s use of its mark in a domain name); see also Educ. Broad. Corp. v. DomainWorks
Inc., FA 882172 (Nat. Arb. Forum
Complainant contends that Respondent has not used the <unitedhealthpacificare.com> domain
name since registering it in 2005 other than to offer it for sale for
$5,000. In George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007), the panel
held that where a respondent makes a “disproportionate” offer to sell its
domain name registration to the complainant for more than its out-of-pocket
registration costs, there is additional evidence that the respondent lacks
rights and legitimate interests in the disputed domain name. Moreover, the panel in Vance Int’l, Inc. v. Abend, FA 970871
(Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel also finds that Respondent opportunistically
engaged in bad faith registration and use by registering the <unitedhealthpacificare.com>
domain name on the same day of Complainant’s formal announcement of a
merger. In Cree, Inc. v. The Domain Name You Have Entered is For Sale, FA
94790 (Nat. Arb. Forum May 25, 2000), the respondent registered domain names on
the date of the complainant’s press release regarding a merger and business
expansion, and the respondent immediately began offering them for sale. The panel found that the respondent’s conduct
demonstrated bad faith registration and use.
If there had been any doubt as to bad faith, the fact that registration was on the same day the news leaked about the merger, which was put in evidence, is a compelling indication of bad faith that Respondent has to refute and which he has failed to do. The Panel finds a negative inference from this.
In this case, therefore, Respondent’s registration and use of the <unitedhealthpacificare.com> domain name on the same day that Complainant announced a merger with PacifiCare Health Systems, Inc., now a wholly-owned subsidiary of Complainant, constitutes opportunistic bad faith under Policy ¶ 4(a)(iii).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <unitedhealthpacificare.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 5, 2007
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