Medline Industries, Inc. v. domain admin
Claim Number: FA2107001954381
Complainant is Medline Industries, Inc. (“Complainant”), represented by Janet A. Marvel of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is domain admin (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <curadclinicalcare.com>, (‘the Domain Name’) registered with Dynadot, 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 July 8, 2021; the Forum received payment on July 8, 2021.
On July 13, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <curadclinicalcare.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 July 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 4, 2021 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@curadclinicalcare.com. Also on July 15, 2021, 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 August 9, 2021 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 Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark CURAD, registered, inter alia, in the USA for health related products and services with first use recorded as 1919. Recently, the Complainant applied to register CURAD CLINICAL CARE & Design with the United States Patent and Trademark Office for various hospital-quality healthcare products, including adhesive bandages, gauze, and wound-care products in Class 5. The applications were filed on November 17, 2017 and June 17, 2021, respectively.
The Domain Name registered June 21, 2021 is confusingly similar to the Complainant’s CURAD mark adding only the generic term ‘clinical care’ (reflecting the Complainant’s trade mark application a few days earlier) and the gTLD “.com”.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been attached to a web site offering it for sale generally for $990. This is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark CURAD, registered, inter alia, in the USA for health related products and services with first use recorded as 1919. Recently, the Complainant applied to register CURAD CLINICAL CARE & Design with the United States Patent and Trademark Office for various hospital-quality healthcare products, including adhesive bandages, gauze, and wound-care products in Class 5. These applications were filed on November 17, 2017 and June 17, 2021, respectively.
The Domain Name registered June 21, 2021 has been offered for sale generally for US $990.
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 Name consist of the Complainant's CURAD mark (which is registered, inter alia, in the USA for health related products and services with first use recorded as 1919), the generic term ‘clinical care’ and the gTLD “.com”.
The addition of a generic term and a gTLD do not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).); see additionally Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
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 Name. 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 Domain Name is similar to a trade mark application filed by the Complainant a few days earlier. It has been offered for sale which can be an additional indication of lack of rights or legitimate interests. See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that a general offer for sale… provides evidence that Respondent lacks rights and legitimate interests in a disputed domain name).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark and the term ‘clinical care’ (a few days after the Complainant filed a trade mark application for that word combination suggestive of opportunistic bad faith) and offer it for sale generally for US $990.
Per Policy 4(b)(i), a general offer to sell an infringing domain name can demonstrate bad faith. See loanDepot.com, LLC v. Expired domain caught by auction winner.***Maybe for sale on Dynadot Marketplace*** c/o Dynadot, FA 1786281 (Forum June 8, 2018) (“Complainant shows that Respondent offers the disputed domain name for sale for $950, no doubt above its out-of-pocket costs. The Panel finds that this constitutes bad faith under Policy ¶ 4(b)(i). ”).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <curadclinicalcare.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 9, 2021
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