New York Quality Healthcare Corporation d/b/a Fidelis Care v. Mike Morgan
Claim Number: FA2002001881918
Complainant is New York Quality Healthcare Corporation d/b/a Fidelis Care (“Complainant”), represented by Christina M. Sauerborn of Leason Ellis LLP, New York, USA. Respondent is Mike Morgan (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fidelisacre.org> and <fiddeliscare.org> (‘the Domain Names’), registered with Network Solutions, LLC.
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.
Complainant submitted a Complaint to the Forum electronically on February 4, 2020; the Forum received payment on February 4, 2020.
On February 4, 2020, Network Solutions, LLC confirmed by e-mail to the Forum that the <fidelisacre.org> and <fiddeliscare.org> domain names are registered with Network Solutions, LLC and that Respondent is the current registrant of the names. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 February 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2020 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@fidelisacre.org, postmaster@fiddeliscare.org. Also on February 12, 2020, 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 March 9, 2020, 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.
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant though its parent company is the owner of the mark FIDELIS CARE for the administration of health care plans, registered in the USA with first use recorded as 1993. The Complainant is also the owner of common law rights in the marks FIDELIS and FIDELIS CARE through its continuous use of the mark in commerce since 1993.
The Domain Names registered in 2018 are confusingly similar to the Complainant’s FIDELIS CARE trade mark, transposing two letters ‘c’ and ‘a’ in one case or adding a letter ‘d’ in the other and in both cases adding the gTLD .org, none of which changes prevent the confusing similarity between the Domain Names and the Complainant’s mark.
The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
The Domain Names have been used to point to third party pay per click links which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith, diverting Internet users for commercial gain and disrupting the Complainant’s business. Typosquatting per se is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is, inter alia, the owner of common law rights in the marks FIDELIS and FIDELIS CARE through its continuous use of the mark in commerce since 1993.
The Domain Names registered in 2018 have been used for third party commercial pay per click 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 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”).
The Domain Names each consist of a sign confusingly similar to the Complainant’s FIDELIS CARE mark (in which the Complainant owns, inter alia, common law rights for administration of health plan services with first use recorded as 1993), either transposing two letters in one case or adding the letter ‘d’ in the other and in both cases adding the gTLD .org.
The misspelling of a mark by addition or transposition of letters and addition of a gTLD may not negate confusing similarity between the mark and a disputed domain name per Policy 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD …This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purpose 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 Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 Respondent has used the site attached to the Domain Names for pay per click links not connected with the Complainant. He does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
Further, the practice of registering a domain name containing common typing errors in a complainant’s mark, can indicate a lack of rights and legitimate interests in a domain name under Policy 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy 4(a)(ii).”).
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Typosquatting itself is evidence of relevant bad faith registration and use and indicates knowledge of a Complainant’s mark. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (holding that registering a domain name which incorporates a misspelt famous mark in the hope that Internet users will mistype it and be taken to the Respondent’s site is registration and use in bad faith).
The Respondent is using the Domain Names to profit by linking to third party web sites in a confusing manner. The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites attached to the Domain Names and goods or services on it. See Dovetail Ventures LLC v. Klayton Thorpe, FA 1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy 4(b)(iv) where it used the disputed domain name to host a variety of hyperlinks unrelated to the complainant’s business through which the Respondent presumably gained).
Further it has been held that such use is disruptive under Policy 4 (b)(iii) of the Policy. See Adriana Inc. v. Moniker Privacy services, FA 1503001610020 (Forum May 1, 2015) (Using pay per click links redirecting users to web sites to disrupt a Complainant’s business is evidence of bad faith registration and use under Policy 4(b)(iii).)
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fidelisacre.org> and <fiddeliscare.org> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 9, 2020
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