DaVita Inc. v. Cynthia Rochelo
Claim Number: FA1708001742941
Complainant is DaVita Inc. (“Complainant”), represented by Sarah J Schneider of Sheridan Ross P.C., Colorado, USA. Respondent is Cynthia Rochelo (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <davitahealthcare.us>, registered with Google 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 3, 2017; the Forum received payment on August 3, 2017.
On August 4, 2017, Google Inc. confirmed by e-mail to the Forum that the <davitahealthcare.us> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 28, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@davitahealthcare.us. Also on August 7, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on August 28, 2017.
On August 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, DaVita Inc., offers a wide variety of services, all of which are generally related to health and medical services, and related management and educational services concerning the treatment of patients with renal disease. Complainant registered the DAVITA mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,576,733, registered Jun. 4, 2002). See Compl., at Attached Ex. D. Respondent’s <davitahealthcare.us> domain name is confusingly similar to Complainant’s mark as it contains the entire DAVITA mark and appends the generic term “healthcare,” along with the country code top-level domain (“ccTLD”) “.com.”
Respondent has no rights or legitimate interests in the <davitahealthcare.us> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in a phishing scheme to offer fraudulent employment opportunities to unsuspecting individuals. See Compl., at Attached Ex. J-O (email chains showing employment phishing scheme). Respondent engages in this phishing scheme to acquire personal and financial information from these individuals. Additionally, Respondent fails to build a website or otherwise present demonstrable evidence of preparations to build a website associated with the disputed domain name.
Respondent registered and uses the <davitahealthcare.us> domain name in bad faith, as Respondent uses the disputed domain name to pass off as Complainant in a phishing scheme to offer fraudulent employment opportunities to unsuspecting individuals. See Compl., at Attached Ex. J-O (email chains showing employment phishing scheme). Further, Respondent registered the disputed domain name to prevent Complainant from reflecting its trademarks and service marks in the corresponding domain name, as it has registered multiple domain names reflecting the DAVITA mark. See Compl., at Attached Ex. B (prior domain name registered by Respondent reflecting the DAVITA mark). Finally, it is inconceivable that Respondent registered the disputed domain name without knowledge of Complainant’s rights in the DAVITA mark because Complainant began using the mark well before Respondent registered and used the disputed domain name.
B. Respondent
Respondent sent the Forum a non-responsive Response. Respondent insists that she did not register the <davitahealthcare.us> domain name and that someone appropriated her identity to do so. The Panel notes that someone, either Respondent or in Respondent’s name, registered the <davitahealthcare.us> disputed domain name on May 31, 2017. See Compl., at Attached Ex. C.
The Panel finds that Respondent acquiesces to the transfer of the disputed domain name and therefore orders the domain name to be immediately transferred.
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."
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In a non-responsive Response, Respondent acquiesced to and agrees with the transfer of the disputed domain name. As such, the Panel hereby orders the transfer of the disputed domain name and shall forgo the usual three element analysis.
Having acquiesced to the transfer, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <davitahealthcare.us> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 31, 2017
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