MedImpact Healthcare Systems, Inc. v. Yabani Eze / Sugarcane Internet Nigeria Limited
Claim Number: FA2104001942248
Complainant is MedImpact Healthcare Systems, Inc. ("Complainant"), represented by Susan Meyer of Gordon & Rees, LLP, California, USA. Respondent is Yabani Eze / Sugarcane Internet Nigeria Limited ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <medimpacy.com>, registered with Sav.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2021; the Forum received payment on April 20, 2021.
On April 23, 2021, Sav.com, LLC confirmed by email to the Forum that the <medimpacy.com> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 April 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@medimpacy.com. Also on April 26, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 18, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a pharmacy benefit company that provides health plans for business, government programs, and self-employed individuals, and serves more than 55 million consumers in the United States. Complainant uses MEDIMPACT and MEDIMPACT.COM in connection with these services, and owns longstanding United States trademark registrations for both marks in standard character form.
Respondent registered the disputed domain name <medimpacy.com> via a privacy registration service in January 2021. Complainant characterizes the domain name as an instance of typosquatting, and states that it directs users to various web pages, at least some of which attempt to download malicious software. Complainant states that Respondent is not known by the disputed domain name and is not associated with Complainant.
Complainant contends on the above grounds that the disputed domain name <medimpacy.com> is confusingly similar to its MEDIMPACT mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <medimpacy.com> incorporates Complainant's registered MEDIMPACT and MEDIMPACT.COM trademarks, substituting a letter "Y" for the "T" and, in the former instance, appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Bare Escentuals Beauty, Inc. v. Domain Proxy Manager / Domains By Proxy - Niche Proxy Account, FA 1576283 (Forum Oct. 1, 2014) (finding <bareescenyuals.com> confusingly similar to BARE ESCENTUALS); Amerimark Direct, LLC & its subsidiary Dr. Leonard's Healthcare Corp. v. ICS INC. / ORM Ltd., FA 1555844 (Forum June 9, 2014) (finding <carolwrighygifts.com> confusingly similar to CAROL WRIGHT GIFTS). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's registered mark, but for a typographical substitution, and its only apparent use has been to disseminate malware. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Availity, L.L.C. v. Host Master / Name Transure Enterprise Ltd, FA 1924386 (Forum Jan. 13, 2021) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name that incorporates a typographical variation on Complainant's registered mark (an obvious instance of typosquatting), and is using the domain name to propagate malware, presumably for Respondent's commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Availity, L.L.C. v. Host Master / Name Transure Enterprise Ltd, supra (finding bad faith in similar circumstances); Home Depot Product Authority, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1850822 (Forum Aug. 5, 2019) (same). The Panel is also mindful of Respondent's history of bad faith domain name registrations and adverse determinations under the Policy. See, e.g., Government Employees Insurance Co. (“GEICO”) v. Yabani Eze, Sugarcane Internet Nigeria Ltd., DCO2021-0018 (WIPO Apr. 26, 2021); Crédit Industriel et Commercial S.A. v. Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Yabani Eze, Sugarcane Internet Nigeria Ltd., D2020-1763 (WIPO Aug. 25, 2020). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <medimpacy.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 19, 2021
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