Cardinal Health, Inc. v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2002001885710
Complainant is Cardinal Health, Inc. (“Complainant”), represented by Deborah A. Wilcox of Baker & Hostetler LLP, Ohio, United States. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cardinalheath.com>, registered with Media Elite Holdings Limited.
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 Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 26, 2020; the Forum received payment on February 26, 2020.
On February 27, 2020, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <cardinalheath.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 March 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 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@cardinalheath.com. Also on March 2, 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 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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, Cardinal Health Inc., is a $103 billion health care services company that provides pharmaceuticals and medical products and services to more than 100,000 locations each day. Complainant has rights in the CARDINAL HEALTH mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,249,206 registered on June 1, 1999). Respondent’s <cardinalheath.com> domain name is confusingly similar to Complainant’s CARDINAL HEALTH mark as it includes the mark in its entirety, removing a single letter, and adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <cardinalheath.com> domain name. Respondent is not commonly known by the disputed domain name and Respondent is not authorized to use Complainant’s mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s disputed domain name resolving webpage currently hosts pay-per-click hyperlinks to medical accessories and equipment, although the disputed domain name has a history of resolving to other infringing webpages.
Respondent registered and uses the <cardinalheath.com> domain name in bad faith. Respondent’s disputed domain name resolves to a webpage hosting pay-per-click hyperlinks. Also, Respondent engages in typosquatting. Further, Respondent’s disputed domain name formerly resolved to a webpage prompting users to install malware. Finally, Respondent had actual knowledge of Complainant’s rights in the CARDINAL HEALTH mark prior to its registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Cardinal Health Inc., is a $103 billion health care services company that provides pharmaceuticals and medical products and services to more than 100,000 locations each day. Complainant has rights in the CARDINAL HEALTH mark through its registration of the mark with the USPTO. (e.g. Reg. No. 2,249,206 registered on June 1, 1999). Respondent’s <cardinalheath.com> domain name is confusingly similar to Complainant’s CARDINAL HEALTH mark.
Respondent registered the disputed domain name on October 20, 2005.
Respondent lacks rights or legitimate interests in the <cardinalheath.com> domain name. Respondent’s disputed domain name resolving webpage currently hosts pay-per-click hyperlinks to medical accessories and equipment, although the disputed domain name has a history of resolving to other infringing webpages.
Respondent registered and uses the <cardinalheath.com> domain name in bad faith.
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”).
Complainant has rights in the CARDINAL HEALTH mark through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018).
Respondent’s <cardinalheath.com> domain name is confusingly similar to Complainant’s CARDINAL HEALTH mark as it includes the mark in its entirety, removes a single letter, and adds the “.com” gTLD.
Respondent lacks rights or legitimate interests in the <cardinalheath.com> domain name. Respondent is not commonly known by the disputed domain name. Respondent is not a licensee or authorized to use Complainant’s CARDINAL HEALTH mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). 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); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Respondent used a privacy service. As a result, the WHOIS information for the disputed domain name lists the registrant as “Domain Administrator / Fundacion Privacy Services LTD,” and there is no other evidence to suggest that Respondent was authorized to use the CARDINAL HEALTH marks. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii).
Respondent fails to use the <cardinalheath.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Specifically, Respondent’s disputed domain name currently resolves to a webpage hosting pay-per-click hyperlinks. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Respondent’s disputed domain name resolves to a webpage hosting pay-per-click hyperlinks to third-parties offering medical supplies and equipment. See Amend.
Respondent registered and uses the <cardinalheath.com> domain name in bad faith as Respondent engages in typosquatting. Typosquatting is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Respondent omits the letter “l” from Complainant’s CARDINAL HEALTH mark which could result in Internet users inadvertently typing the word “heath” rather than “health.”
Respondent registered and uses the <cardinalheath.com> domain name in bad faith as Respondent’s disputed domain name has previously resolved to a webpage prompting Internet users to install malware. A respondent’s use of a disputed domain name to invite users to install malware onto their computers is evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant provides screenshots of Respondent’s former disputed domain name resolving webpage, which purportedly prompted Internet users to install malware onto their devices. Therefore, Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Finally, Respondent had actual knowledge of Complainant’s rights in the mark when the <cardinalheath.com> domain name was registered. Therefore, Respondent registered and uses the disputed domain in bad faith per Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
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 <cardinalheath.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr., Panelist
Dated: April 6, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page