Availity, L.L.C. v. FAG / yiming liu
Claim Number: FA1901001825252
Complainant is Availity, L.L.C. (“Complainant”), represented by Catherine Hora Anderson of Availity, L.L.C., Florida, USA. Respondent is FAG / yiming liu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availityloginportal.com>, registered with NameSilo, 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 15, 2019; the Forum received payment on January 15, 2019.
On January 16, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <availityloginportal.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 January 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 5, 2019 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@availityloginportal.com. Also on January 16, 2019, 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 February 7, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, 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). Respondent’s <availityloginportal.com> domain name is confusingly similar to Complainant’s mark as it incorporates the entire AVAILITY mark and is differentiated only by the addition of the descriptive terms “login” and “portal” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <availityloginportal.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 manner. 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 itself off as Complainant in furtherance of a phishing scheme, as well as to host advertising links.
Respondent registered and uses the <availityloginportal.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.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <availityloginportal.com> domain name.
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.”).
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). See 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). The Panel finds that Complainant has rights in the AVAILITY mark for purposes of Policy ¶ 4(a)(i).
Complainant contends Respondent’s <availityloginportal.com> domain name is confusingly similar to Complainant’s mark because it incorporates the AVAILITY mark in its entirety and is differentiated only by the addition of the “login” and “portal” descriptive terms and the “.com” gTLD. The addition of descriptive terms is 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 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). The Panel finds that the <availityloginportal.com> domain name is confusingly similar to Complainant’s AVAILITY mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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”).
Complainant argues that Respondent lacks rights and legitimate interests in the <availityloginportal.com> domain name. Specifically, Complainant claims 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 is 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 WHOIS information of record identifies the Respondent as “FAG / yiming liu,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any manner. The Panel finds that Respondent is not commonly known by the disputed domain name and lacks rights and legitimate interests in the <availityloginportal.com> domain name under Policy ¶ 4(c)(ii).
Complainant asserts Respondent fails to use the <availityloginportal.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 itself 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 contends that Respondent used the disputed domain name to host a series of blog posts that purported to walk users through an Availity Portal. One of the posts contained login information that was associated with a YouTube video revealing confidential health information. Complainant provides screenshots of the disputed domain name’s resolving webpages and associated YouTube video, which feature Complainant’s AVAILITY mark and reference Complainant’s login portal. 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.
Complainant claims Respondent uses the <availityloginportal.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 claims Respondent’s website features sponsored links to competitors’ websites, as well as unrelated commercial websites. The Panel finds that Respondent uses the disputed domain name to host links to competing and unrelated websites.
Complainant asserts Respondent uses the <availityloginportal.com> domain name in connection with a phishing scheme. Use of a disputed domain name to pass itself 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 claims Respondent is phishing for users’ login information because Respondent provides login instructions at the disputed domain name’s resolving webpage through a YouTube instructional video. The Panel finds that Respondent uses the disputed domain name in connection with a phishing scheme and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant asserts Respondent registered and uses the <availityloginportal.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 under Policy ¶ 4(b)(ii). 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 provides a copy of a UDRP decision in which Respondent was subject to the adverse UDRP proceeding. Further, Complainant contends a decision has previously been decided against Respondent, transferring a disputed domain name to a complainant, Capital One Financial Corp. Finally, Complainant claims Respondent has registered and is currently operating at least two other domain names that are confusingly similar to marks of well-known companies/franchises. The Panel finds that Respondent engages in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii).
Complainant claims Respondent uses the <availityloginportal.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).”). Complainant provides screenshots of Respondent’s webpage, which features Complainant’s AVAILITY mark and instructs users on Complainant’s login portal. The Panel finds that Respondent uses the <availityloginportal.com> domain name to disrupt Complainant’s business under Policy ¶ 4(b)(iii).
Complainant also contends that Respondent’s bad faith is indicated by its use of the <availityloginportal.com> domain name to link to third party websites, some of which compete with Complainant’s business. Use of a domain name to resolve to a page of third-party links, including competitive links, can demonstrate a respondent’s bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Complainant contends the domain name resolves to a webpage displaying links to third party websites, some of which belong to competitors of Complainant. The Panel finds from Complainant’s uncontested allegations and evidence that Respondent registered and uses the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Complainant also claims Respondent uses the <availityloginportal.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 claims 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. The Panel finds that Respondent engages in phishing, thereby supporting a finding of bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <availityloginportal.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: February 13, 2019
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