Spectrum Health v. Zhichao Yang / Li Qian / mo ban lin shi / Zhichao / Johnathan Susich
Claim Number: FA2103001939562
Complainant is Spectrum Health (“Complainant”), represented by Malaina J Weldy of Warner Norcross + Judd LLP, Michigan, USA. Respondents are Zhichao Yang / Li Qian / mo ban lin shi / Zhichao, China and Johnathan Susich, USA (“Respondents”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org>, <spectremhealth.org>, and <spectrumshealth.org>, (“the Domain Names”) registered respectively with GoDaddy.com, LLC; Dynadot, LLC; Name.com, Inc.; Chengdu West Dimension Digital Technology Co., Ltd.; Dynadot, LLC; and Wild West Domains, LLC. (“the Registrars”).
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.
Alan L Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 30, 2021. The Forum received payment on March 30, 2021.
On March 30 and 31, 2021, the Registrars confirmed by e-mail to the Forum that the Domain Names are registered with the Registrars and that Respondents are the current registrants of the names. The Registrars have verified that Respondents are bound by the GoDaddy.com, LLC; Dynadot, LLC; Name.com, Inc.; Chengdu West Dimension Digital Technology Co., Ltd.; and Wild West Domains, LLC registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”); and that the Chengdu West Dimension Digital Technology Co., Ltd. registration agreement is in Chinese and the other registration agreements are in English.
On April 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 3, 2021 by which Respondents could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondents’ registrations as technical, administrative, and billing contacts, and to postmaster@specrtumhealth.org, postmaster@spectrumheatlh.org, postmaster@sprectrumhealth.org, postmaster@specrumhealth.org, postmaster@spectremhealth.org, postmaster@spectrumshealth.org. Also on April 12, 2021, the Written Notice of the Complaint, notifying Respondents of the e-mail addresses served and the deadline for a Response, was transmitted to Respondents in English and Chinese via post and fax, to all entities and persons listed on Respondents’ registrations as technical, administrative and billing contacts.
Having received no response from Respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On May 10, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L Limbury 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”. Paragraph 1(d) of the Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
Complainant contends that the Domain Names are effectively controlled by the same person because they all incorporate a misspelling of “Spectrum Health”; the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names all resolve to almost identical websites and use the same IP location; and the <spectrumheatlh.org> and <spectremhealth.org> domain names were both registered with the same Registrar on the same day.
The Panel notes that, apart from the misspelling of “Spectrum Health”, the <spectrumshealth.org> domain name does not resolve to a website and therefore has no IP location. Its registrant has an English name and a California address, whereas the other registrants have Chinese names and addresses and the registrants of the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, and <spectremhealth.org> domain names have the same email address. For these reasons, the Panel is not satisfied that the <specrumhealth.org> domain name is under the control of same the person as the other domain names. Accordingly, the Panel dismisses this proceeding against Johnathan Susich without prejudice to the right of Complainant to file a separate proceeding against him over the same domain name.
In the absence of any evidence to the contrary, there is sufficient commonality as between the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org>, <spectremhealth.org> domain names to satisfy the Panel that they are commonly owned or controlled by a single person who is using multiple aliases. Henceforth this decision will refer to Zhichao Yang / Li Qian / mo ban lin shi / Zhichao as “Respondent”.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the Chengdu West Dimension Digital Technology Co., Ltd. registration agreement is in Chinese and the other registration agreements are in English.
Pursuant to Rule 11(a), the language of the proceeding in relation to the <specrumhealth.org> domain name shall be Chinese and, in relation to the other domain names, English, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that all the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org>, <spectremhealth.org> domain names are in English and resolve to English language websites with English pay-per-click links. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Chinese language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant is a health provider in Western Michigan. Complainant has rights in the SPECTRUM HEALTH mark through its registration with the United States Patent and Trademark Office (“USPTO”). Respondent’s <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names are identical or confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its SPECTRUM HEALTH mark in the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts competing pay-per-click links.
Respondent registered and uses the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names in bad faith. Respondent attracts internet users for commercial gain by hosting competing pay-per-click links on the disputed domain names’ resolving websites. Respondent typosquats with the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the SPECTRUM HEALTH mark through its registration with the USPTO, Reg. No. 5,924,104, registered Dec. 3, 2019 upon application filed January 10, 2018.
The Panel finds each of Respondent’s <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names to be confusingly similar to Complainant’s mark as they each incorporate a slightly misspelled version of Complainant’s mark and add to the mark the inconsequential “.org” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The domain names were registered as follows:
<sprectrumhealth.org> July 24, 2015.
<specrumhealth.org> April 12, 2017.
<specrtumhealth.org> September 27, 2018.
<spectrumheatlh.org> September 16, 2019.
<spectremhealth.org> September 16, 2019.
The domain names all resolve to virtually identical websites with links to healthcare services. Complainant has not provided any evidence of use of the mark prior to its registration. All the domain names were registered prior to the registration date of Complainant’s SPECTRUM HEALTH trademark and two were registered prior to the date of filing of the trademark application.
Despite Complainant’s failure to provide evidence of use of its mark prior to its application and registration dates, the clearly deliberate misspelling of that mark inherent in each of the domain names satisfies the Panel that Complainant’s mark was in use when the domain names were registered and that Respondent had Complainant and its mark in mind when registering each of the domain names.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show that it does have rights or legitimate interests in the domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). The Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
Each of the domain names is a typosquatted version of Complainant’s SPECTRUM HEALTH trademark, itself evidence of bad faith. Respondent clearly had Complainant and its mark in mind when registering each of the domain names and did so intentionally to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites.
Accordingly, the Panel finds that Respondent registered and is using the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org> and <spectremhealth.org> domain names in bad faith.
Complainant has established this element.
Complainant having established against Respondent all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <specrtumhealth.org>, <spectrumheatlh.org>, <sprectrumhealth.org>, <specrumhealth.org>, <spectremhealth.org> domain names be TRANSFERRED from Respondent to Complainant.
It is further ordered that the proceeding as to the <spectrumshealth.org> domain name be dismissed without prejudice to the right of Complainant to file a separate proceeding against the registrant of that domain name, Johnathan Susich, over that domain name.
Alan L Limbury, Panelist
Dated: May 13, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page