Availity, L.L.C. v. yang yang
Claim Number: FA1809001806149
Complainant is Availity, L.L.C. (“Complainant”), represented by Matt Henderson of Availity, L.L.C., Florida, USA. Respondent is yang yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availity-login-portal.com>, registered with Godaddy.Com, Llc.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 14, 2018; the Forum received payment on September 14, 2018.
On September 17, 2018, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <availity-login-portal.com> domain name is registered with Godaddy.Com, Llc and that Respondent is the current registrant of the name. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 2018 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@availity-login-portal.com. Also on September 18, 2018, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 11, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
Complainant, Availity L.L.C., is a leading healthcare information technology company. Complainant has rights in the AVAILITY mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). See Amend. Compl. Annex 2. Respondent’s <availity-login-portal.com> domain name is confusingly similar to Complainant’s mark because Respondent includes the entire AVAILITY mark in the domain name plus the descriptive terms “login” and “portal,” two hyphens, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <availity-login-portal.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant in furtherance of a phishing scheme, as well as to host advertising links.
Respondent registered and uses the <availity-login-portal.com> domain name in bad faith. Respondent exhibits a pattern of bad faith registration of domain names incorporating other famous marks. Additionally, Respondent attempts to disrupt Complainant’s business by attracting users to the disputed domain name’s website which features Complainant’s AVAILITY mark along with login instructions that Respondent uses in connection with a phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is a leading healthcare information technology company.
2. Complainant has established its trademark rights in the AVAILITY mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002).
3. Respondent registered the <availity-login-portal.com> domain name on January 31, 2018.
4. Respondent uses the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme, as well as to host advertising links.
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 and is being used in bad faith.
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(f), 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 (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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant has rights in the AVAILITY mark based upon its registration of the mark with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in a mark under Policy ¶ 4(a)(i). Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Here, Complainant provides copies of its registrations with the USPTO (e.g., Reg. No. 2,667,172, registered Dec. 24, 2002). See Amend. Compl. Annex 2. Therefore, the Panel finds that Complainant has rights in the AVAILITY mark for purposes of Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s AVAILITY mark. Complainant contends Respondent’s <availity-login-portal.com> domain name is confusingly similar to Complainant’s mark because Respondent includes the entire AVAILITY mark in the domain name plus descriptive terms, hyphens, and a gTLD. The addition of descriptive terms may be insufficient to distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Avaya Inc. v. Robert Bird, FA 1603045 (Forum Mar. 12, 2015) (“The Panel agrees that the disputed domain names are confusingly similar to the AVAYA mark pursuant to Policy ¶ 4(a)(i) as the added terms are descriptive of and related to Complainant’s offerings, and in the cases of <avaya.help>, and <avayaphone.systems>, the added gTLD adds to the confusion . . .”). Further, the addition of a hyphen is generally insufficient to distinguish a domain name from a mark. See Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). Finally, the addition of a gTLD is irrelevant under Policy ¶ 4(a)(i). See Colin LeMahieu v. NANO DARK, FA 1786065 (Forum June 9, 2018) (finding that the addition of a generic term and the generic top-level domain “.com” insufficient to differentiate the <nanodark.com> domain name from the NANO mark). Here, Respondent incorporates Complainant’s AVAILITY mark in its entirety in the domain name, adds the descriptive terms “login” and “portal,” two hyphens, and the gTLD “.com.” Therefore, the Panel concludes that the <availity-login-portal.com> domain name is confusingly similar to Complainant’s AVAILITY mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s AVAILITY trademark and to use it in its domain name, adding the descriptive terms “login” and “portal” that do not negate the confusing similarity with Complainant’s trademark;
(b) Respondent registered the <availity-login-portal.com> domain name on January 31, 2018;
(c) Respondent uses the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme, as well as to host advertising links;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent lacks rights and legitimate interests in the <availity-login-portal.com> domain name. Specifically, Complainant submits that Respondent is not authorized or permitted to use Complainant’s AVAILITY mark and is not commonly known by the disputed domain name. Where a response is lacking, relevant WHOIS information may be used to identify the respondent per Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization from complainant to use its marks may be further evidence that a respondent is not commonly known by a disputed domain name. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). The Panel notes the WHOIS of record identifies the Respondent as “yang yang / yang,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way. Accordingly, the Panel finds that the Respondent is not commonly known by the disputed domain name and thus lacks rights and legitimate interests in the <availity-login-portal.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant submits that Respondent fails to use the <availity-login-portal.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the disputed domain name to pass itself off as Complainant. Use of a disputed domain name to pass off as complainant may not be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the disputed domain name’s resolving webpages, which feature Complainant’s AVAILITY mark and reference Complainant’s login portal. See Amend. Compl. Annexes 4 and 5. Complainant claims Respondent’s webpages contain similar content to Complainant’s own website because they reference Complainant’s customers and its portal, however Complainant fails to provide evidence for this contention. Accordingly, the Panel finds that Respondent uses the disputed domain name to pass itself off as Complainant under a Policy ¶ 4(c)(i) or (iii) analysis;
(g) Complainant submits that Respondent uses the <availity-login-portal.com> domain name to host links to competing and unrelated websites. Use of a disputed domain name to host hyperlinks is generally not a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant submits that Respondent’s website features sponsored links to competitors’ websites, as well as unrelated commercial websites. See Amend. Compl. Annexes 4 and 5. Therefore, while conducting a Policy ¶¶ 4(c)(i) or (iii) analysis, the Panel concludes Respondent uses the disputed domain name to host links to competing and unrelated websites;
(h) Use of a disputed domain name to pass off as a complainant in furtherance of a phishing scheme is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). Complainant submits that Respondent is phishing for users’ login information because Respondent provides login instructions at the disputed domain name’s resolving webpage. See Amend. Compl. Annexes 4 and 5. Therefore, under a Policy ¶¶ 4(c)(i) or (iii) analysis, the Panel finds that Respondent uses the disputed domain name in connection with a phishing scheme.
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant submits that Respondent registered and uses the <availity-login-portal.com> domain name in bad faith. Specifically, Complainant claims Respondent engages in a pattern of bad faith registration of domain names infringing on famous marks. Such a pattern can be shown through adverse UDRP history. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Such a pattern can also be shown when WHOIS information indicates that a respondent owns other domain names that infringe on other trademark holders’ famous marks. See Bid Industrial Holdings (Proprietary) Limited v. ZhangPeng / Zhang Peng, FA 1743105 (Forum Sep. 15, 2017) (finding that the complainant’s submission of WHOIS evidence that listed the respondent as the registrant of other domain names incorporating third-party trademarks was sufficient to establish that the respondent had a pattern of registering and using domain names in bad faith pursuant to Policy ¶ 4(b)(ii)). Here, Complainant claims Respondent was subject to one adverse UDRP proceeding this year. The Panel notes that Complainant provides the case citation, but does not attach the case to the complaint. Complainant also claims Respondent owns two other domain names that infringe on other trademarks. The Panel notes that Complainant does not provide evidence for this contention. However, as the Panel finds Complainant’s assertions credible nonetheless, the Panel concludes that Respondent engages in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Secondly, Complainant claims Respondent uses the <availity-login-portal.com> domain name to disrupt Complainant’s business through the use of a confusingly similar domain name and website. Use of a disputed domain name to divert Internet users generally disrupts a complainant’s business, thereby evincing bad faith under Policy ¶ 4(b)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Complainant alleges that Respondent is using the disputed domain name to divert Internet users to Respondent’s website, which features content that is identical to Complainant’s own website. The Panel finds that Respondent is disrupting Complainant’s business and that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).”). The Panel notes that Complainant provides screenshots of Respondent’s webpage, which features Complainant’s AVAILITY mark and instructs users on Complainant’s login portal. See Amend. Compl. Annexes 4 and 5. Therefore, the Panel finds that Respondent uses the <availity-login-portal.com> domain name to disrupt Complainant’s business under Policy ¶ 4(b)(iii).
Thirdly, Complainant submits that Respondent uses the <availity-login-portal.com> domain name in connection with a phishing scheme. Use of a complainant’s mark in a disputed domain name in furtherance of a phishing scheme may indicate bad faith registration and use under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Here, Complainant submits that the confusing similarity between the disputed domain name’s resolving webpage and Complainant’s website may trick users, namely healthcare providers, into divulging financial information, protected health information, and usernames and passwords. See Amend. Compl. Annexes 4 and 5.Therefore, the Panel finds that Respondent engages in phishing, thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii).
Finally, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the AVAILITY mark and in view of the conduct that Respondent has engaged in when using the disputed domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <availity-login-portal.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: October 12, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page