CVS Heath Corporation, Aetna Inc., Prodigy Health Group, Inc. v. Meritain Health
Claim Number: FA2004001892940
Complainant is CVS Heath Corporation, Aetna Inc., Prodigy Health Group, Inc. (“Complainant”), represented by Sarah J Schneider of Sheridan Ross P.C., Colorado, United States. Respondent is Meritain Health (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <meritainn.com>, registered with Wild West Domains, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2020; the Forum received payment on April 20, 2020.
On April 21, 2020, Wild West Domains, LLC confirmed by e-mail to the Forum that the <meritainn.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 April 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 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@meritainn.com. Also on April 27, 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 May 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an American healthcare company and the nation’s largest independent third-party administrator of self-funded health insurance plans.
Complainant holds a registration for the MERITAIN HEALTH service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No 3,366,869, registered January 8, 2008.
Respondent registered the domain name <meritainn.com> on or about November 16, 2019.
The domain name is confusingly similar to Complainant’s MERITAIN HEALTH service mark.
Respondent is not licensed or otherwise authorized to use Complainant’s MERITAIN HEALTH mark.
Respondent has not been commonly known by the domain name.
Respondent fails to use the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name in furtherance of a fraudulent phishing scheme through which Respondent delivers e-mail messages to unsuspecting Internet users seeking employment with Complainant in which messages Respondent impersonates Complainant’s human resources employees and hiring managers and requests that a job applicant provide a copy of personal identification documents such as a driver’s license, passport or social security card in order to garner an offer of employment.
Respondent has no rights to or legitimate interests in the domain name.
Respondent used a privacy service to conceal its identity when registering the domain name.
Respondent knew of the Complainant’s rights in the MERITAIN HEALTH mark prior to registering the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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 MERITAIN HEALTH service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See, for example, Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration of a mark with the USPTO was sufficient to establish a UDRP complainant’s rights in that mark in satisfaction of the standing requirements of Policy ¶ 4(a)(i)).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <meritainn.com> domain name is confusingly similar to Complainant’s MERITAIN HEALTH service mark. The domain name incorporates the dominant portion of the mark and merely adds the letter “n” and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum August 18, 2015) (finding that the domain name <blankofamerica.com> contained the entire BANK OF AMERICA mark and merely added the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’).
See also Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO November 14, 2000) (finding the domain name <asprey.com> confusingly similar to a UDRP complainant’s ASPREY & GARRARD and MISS ASPREY marks because it contained the dominant portions of the marks).
Further see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the challenged <meritainn.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the contested <meritainn.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the MERITAIN HEALTH service mark. Moreover, although the pertinent WHOIS information identifies the registrant of the domain name as “Meritain Health,” there is nothing in the record to indicate that Respondent has been commonly known by the domain name, which we note was registered as recently as about six months ago, on November 16, 2019. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <meritainn.com> domain name in furtherance of a fraudulent “phishing” scheme through which Respondent delivers e-mail messages to unsuspecting Internet users seeking employment with Complainant in which messages Respondent impersonates Complainant’s human resources employees and hiring managers and requests that a job applicant provide a copy of personal identification documents such as a driver’s license, passport or social security card in order to garner an offer of employment. This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy 4(c)(i), nor a legitimate noncommercial or fair use under Policy¶4(c)(iii).
See also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1550388 (Forum May 5, 2014):
Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed
<meritainn.com> domain name, as alleged in the Complaint, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii),….
To the same effect, see also Microsoft Corporation v. Terrence Green, FA 1661030 (Forum April 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the MERITAIN HEALTH mark when it registered the <meritainn.com> domain name. This further demonstrates Respondent’s bad faith in registering it. See, for example, Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018):
[T]he fact Respondent registered a domain name that looked identical to the … mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of [its domain name] registration.
The Panel thus finds that Complainant has met its obligations of proof under Policy¶4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <meritainn.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 29, 2020
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