Hackensack Meridian Health, Inc. v. Liu Cheng Bin
Claim Number: FA2202001983303
Complainant is Hackensack Meridian Health, Inc. (“Complainant”), represented by Jennifer M. Mikulina of McDermott Will & Emery LLP, Illinois, USA. Respondent is Liu Cheng Bin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org>, registered with Xin Net Technology Corporation.
PANEL
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 February 4, 2022. The Forum received payment on February 4, 2022. The Complaint was received in English.
On February 9, 2022, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <hacensackumc.org>, <hackendackumc.org>, and <hsckensackumc.org> domain names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation registration agreement, which is in Chinese, 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 February 15, 2022, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of March 7, 2022 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@hacensackumc.org, postmaster@hackendackumc.org and postmaster@hsckensackumc.org. Also on February 15, 2022, the Chinese and English language 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 March 14, 2022, 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 Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the Xin Net Technology Corporation Registration Agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant has requested that the language of the proceeding be English.
The Panel notes that each of the domain names and the websites to which they resolve are in English.
In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be conversant with English; that there would be no undue prejudice to Respondent if English were the language of the proceeding; and that it would be unnecessarily time-consuming and costly to require Complainant to translate the Complaint into Chinese.
Accordingly, pursuant to Rule 11(a), the Panel determines that the proceeding should be in English.
A. Complainant
Complainant, Hackensack Meridian Health, Inc., is an integrated network of healthcare providers in the New Jersey area. In addition to registered trademark rights in the mark HACKENSACK MERIDIEN HEALTH, Complainant has common law rights in the HACKENSACK UNIVERSITY MEDICAL CENTER mark based on use of the mark in commerce. Respondent’s <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org> domain names are confusingly similar to Complainant’s mark.
Respondent lacks rights or legitimate interests in the <hacensackumc.org>, <hackendackumc.org>, and <hsckensackumc.org> domain names. Respondent is not commonly known by the domain names and Complainant has not licensed or permitted Respondent to use the HACKENSACK UNIVERSITY MEDICAL CENTER mark. Additionally, Respondent does not use the domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use as they resolve to webpages with pay-per-click hyperlinks to competing goods and services.
Respondent registered and uses the <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org> domain names in bad faith. Respondent engages in a pattern of bad faith based on registration of multiple typosquatted domain names. Additionally, Respondent uses the domain names to host pay-per-click hyperlinks to competing third-parties.
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 HACKENSACK MERIDIEN HEALTH mark through registrations with the United States Patent and Trademark Office (e.g. Reg. No. 5,716,169 registered April 2, 2019) and that it has acquired common law rights in the HACKENSACK UNIVERSITY MEDICAL CENTER mark through use in commerce, including use since 2011 through Complainant’s websites at “www.hackensackuwc.org” and “www.hackensackmeridianhealth.org”.
The Panel finds Respondent’s <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org> domain names to be confusingly similar to Complainant’s HACKENSACK UNIVERSITY MEDICAL CENTER mark since each domain name misspells HACKENSACK, in each case by a single incorrect character which lies one key away from the correct character on a typical QWERTY keyboard, and adds the well-known “umc” abbreviation for UNIVERSITY MEDICAL CENTER. These differences do not distinguish any of the domain names from the mark, and the inconsequential “.org” generic top-level domain (“gTLD”) may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names 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 on September 30, 2020 and November 19, 2020, long after Complainant acquired common law rights in its HACKENSACK UNIVERSITY MEDICAL CENTER mark. They resolve to websites with sponsored click-through links to third-party commercial websites offering services of the kind provided by Complainant.
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 Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that 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 names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain names, 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 Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s HACKENSACK UNIVERSITY MEDICAL CENTER mark and its UMC abbreviation when Respondent registered the <hacensackumc.org>, <hackendackumc.org> and <hsckensackumc.org> domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s websites and of the services promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hacensackumc.org>, <hackendackumc.org>, and <hsckensackumc.org> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: March 16, 2022
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