DECISION

 

Texas Health Resources v. Zhichao Yang

Claim Number: FA1907001852279

 

PARTIES

Complainant is Texas Health Resources (“Complainant”), represented by Foley Gardere, Texas, USA.  Respondent is Zhichao Yang (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <texasealth.org> (‘the Domain Name’), registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on July 16, 2019; the Forum received payment on July 16, 2019.

 

On July 17, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <texasealth.org> 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 July 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 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@texasealth.org.  Also on July 18, 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 August 8, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

The Complainant’s contentions can be summarized as follows:

 

The Complainant is the owner of the mark TEXAS HEALTH and logo registered in the USA for health related services with first use recorded as 2008.

 

The Domain Name registered in 2018 is confusingly similar to the Complainant’s trademark omitting only an ‘h’ and adding the gTLD “.org,” neither of which prevents such confusing similarity. As a typosquatting registration, the Domain Name is designed to be confusingly similar to the Complainant’s mark.

 

The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.

 

The Domain Name has been pointed to pay per click links that offer services competing to the Complainant’s. This is not a bona fide offering of goods or services or a legitimate noncommercial fair use. It is registration and use in bad faith misdirecting Internet users and disrupting the Complainant’s business. Typosquatting is bad faith per se for the purposes of the Policy.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the mark TEXAS HEALTH and logo registered in the USA for health related services with first use recorded as 2008.

 

The Domain Name registered in 2018 has been used for pay per click links pointing to services that compete with those of the Complainant.

 

DISCUSSION

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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

 

Identical and/or Confusingly Similar

The Domain Name consists of a misspelling of the Complainant’s TEXAS HEALTH and logo mark (registered in the USA  for health related goods and services with first use recorded as 2008) and the gTLD “.org.” The Panel agrees that misspellings such as omission of a letter or letters does not distinguish the Domain Name from the Complainant's trademark pursuant to the Policy. See Twitch Interactive Inc. v Zhang qin, FA 1626511 (Forum Aug. 4, 2015).

 

The gTLD “.org” does not serve to distinguish the Domain Name from the TD BANK mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar to a mark in which the Complainant has rights.

 

Rights or Legitimate Interests

The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

The Domain Name has pointed to a site with pay per click links.  The use is commercial so cannot be legitimate noncommercial or fair use. There is no indication that there is no authorization from the Complainant.  The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. See Ashley Furniture Industries Inc. v. domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015) (linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate noncommercial fair use).

 

Further typosquatting, offering a domain name for sale for a sum exceeding out of pocket expenses is a further indication of a lack of rights or legitimate interest in domain names.

 

As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark in what appears on the face of it to be a typosquatting registration. The combination of both Texas and a misspelling of ‘health’ indicates the Respondent was aware of the Complainant and its business at the time of registration.

 

Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).

 

In the opinion of the Panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the Domain Name is connected to or approved by the Complainant as it offers links to competitors of the Complainant under a sign confusingly similar to the Complainant’s mark. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a  likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant under Policy 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re pay per click links.

 

As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv) and there is no need to consider further alleged grounds of bad faith.

 

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 <texasealth.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Dawn Osborne, Panelist

Dated:  August 8, 2019

 

 

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