Covera Health, Inc. v. Miguel Vasallo
Claim Number: FA2108001958294
Complainant is Covera Health, Inc. (“Complainant”), represented by Jennifer Mikulina of McDermott Will & Emery LLP, Illinois, USA. Respondent is Miguel Vasallo (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coverahealthinc.com>, registered with NameCheap, Inc..
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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2021; the Forum received payment on August 5, 2021.
On August 5, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <coverahealthinc.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 August 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 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@coverahealthinc.com. Also on August 10, 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 September 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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 provides data processing and medical and healthcare services throughout the United States. Complainant has registered the COVERA HEALTH trademark with the United States Patent and Trademark Office (USPTO), and also has common law rights in the Covera Health, Inc. name. The Respondent’s use of <coverahealthinc.com> domain name is identical or confusingly similar to Complainant’s COVERA HEALTH trademark, as it incorporates Complainant’s trademark in its entirety and only adds “inc” and the “.com” generic top-level domain (gTLD).
Respondent has no rights or legitimate interests in the disputed domain name. Complainant did not authorize or license Respondent any rights in the COVERA HEALTH trademark, nor is Respondent commonly known by the name “Covera Health Inc.” Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use, as Respondent uses the domain name to disrupt Complainant’s business, resolve to an inactive website, and in furtherance of a phishing scheme.
Respondent registered and uses the <coverahealthinc.com> domain name in bad faith. The Respondent uses the domain to pass of as Complainant in emails in furtherance of a phishing scheme. The disputed domain name further resolves to an inactive website and disrupts Complainant’s business. Respondent registered the domain name with knowledge of Complainant’s rights in the COVERA trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the following U.S. trademark registration:
No. 5,741,666 COVERA HEALTH (word), registered April 30, 2019 for services in Intl Classes 35 and 44.
The disputed domain name <coverahealthinc.com> was registered on May 16, 2021
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 Complainant asserts rights in the COVERA HEALTH trademark through its registration of the trademark with the USPTO (e.g., Reg. No. 5,741,666, registered on Apr. 30, 2019). Registration of a trademark with the USPTO is sufficient to establish rights in a trademark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Complainant has demonstrated rights in the COVERA HEALTH trademark per Policy ¶ 4(a)(i).
Complainant also argues common law rights, based on the extensive use of the trademark for the past three years and nationwide recognition of the trademark. Past panels have recognized common law rights when the complainant can show longstanding use and promotional advertising. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”); see also Goodwin Procter LLP v. Amritpal Singh, FA 1736062 (Forum July 18, 2017) (holding that the complainant demonstrated its common law rights in the GOODWIN mark through evidence of “long time continuous use of the mark, significant related advertising expenditures, as well as other evidence of the mark’s having acquired secondary meaning.”). Here, the Panel notes that Complainant provides press releases, email addresses using Complainant’s trademark, and Complainant’s website. Although the time of use that Complainant refers to may be rather short, based on the active use the Panel accept Complainant’s arguments and evidence, especially as the Respondent has not filed any arguments against, and the Panel finds that Complainant also has common law rights to the trademark.
The Complainant asserts that Respondent’s <coverahealthinc.com> domain name is confusingly similar to Complainant’s COVERA HEALTH trademark as it contains the trademark in its entirety, simply adding “inc” and the “.com” gTLD. Merely adding a generic word or abbreviation and a gTLD does not sufficiently distinguish the trademark and disputed domain name for the purposes of Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark under Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant contends that Respondent lacks rights and legitimate interests in the <coverahealthinc.com> domain name because Respondent is not authorized to use the COVERA HEALTH trademark and is not commonly known by the disputed domain name. To determine whether a Respondent is commonly known by the disputed domain name, WHOIS information may be used under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interest in the dispute domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a trademark constitutes a further showing that a respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). In this case, the WHOIS information for the disputed domain name lists “Miguel Vasallo” as the registrant and no information suggest that Complainant has authorized Respondent to use the COVERA HEALTH trademark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the <coverahealthinc.com> domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii) because the Respondent uses the disputed domain name to appear as the Complainant in furtherance of a phishing scheme. Past panels have found that using the disputed domain name to pass as a complainant’s employee does not constitute a bona fide offering of goods and services or legitimate noncommercial or fair use. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 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 Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be 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)). Complainant provides the Panel with a screenshot of the email in furtherance of the phishing scheme. Therefore, the Panel clearly finds that Respondent is not using the disputed domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use.
Complainant also states that Respondent is not using the <coverahealthinc.com> domain name to offer bona fide offering of goods and services or legitimate noncommercial or fair use because the resolving website is inactive. Using a domain name to host an inactive website does not constitute a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”). Based on the information provided by the Complainant, the Panel may finds that the Respondent does not use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use.
Complainant first asserts that Respondent acts in bad faith by using a confusingly similar domain name that disrupts Complainant’s business. Using the disputed domain name to appear as an employee of the complainant may indeed serve as a disruption of their business and may evidence bad faith. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> 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), and/or Policy ¶ 4(b)(iv)”). As noted above, Complainant provides a screenshot of the phishing scheme, using the disputed domain name to appear as an employee. Therefore, the Panel finds that using the disputed domain name in furtherance of a phishing scheme disrupts Complainant’s business and constitutes bad faith under Policy ¶ 4(a)(iii).
Similarly, Complainant argues that the inactive holding of the disputed domain name further evidences bad faith by the Respondent. Previously, panels have agreed that using the disputed domain name for an inactive website can be an indication of bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”); see also CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”). The Panel agree that even “use” in the form of resolving to an inactive website can indicate bad faith, and this is especially when the inactive web site use is combined with an active e-mail use, as in this case. Therefore, the Panel finds that the Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered the <coverahealthinc.com> domain name with constructive knowledge of Complainant’s rights in the COVERA HEALTH trademark. While constructive knowledge is generally insufficient in demonstrating bad faith, actual knowledge may be sufficient under Policy ¶ 4(a)(iii), and may be demonstrated through Respondent’s incorporation of a well-known/registered trademark into a domain name, as well as Respondent’s use of the disputed domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS 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 registration.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). As noted above, Respondent has incorporated the COVERA HEALTH trademark, as well as the Complainant’s company name, into the disputed domain name, along with its use of the disputed domain name to allegedly phishing for internet user information. Therefore, the Panel agrees with Complainant’s conclusion, and finds that Respondent registered the disputed domain name with bad faith knowledge of Complainant’s rights in the trademark under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <coverahealthinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: September 17, 2021
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