Conifer Health Solutions, LLC v. Terri Hunn
Claim Number: FA2203001989251
Complainant is Conifer Health Solutions, LLC (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is T*** H**** (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <conifer.careers>, (‘the Domain Name’) registered with NameCheap, Inc..
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 March 22, 2022; the Forum received payment on March 22, 2022.
On March 22, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <conifer.careers> 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 March 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 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@conifer.careers. Also on March 23, 2022, 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 April 14, 2022 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 and/or members of its group are the owner of a number of marks including CONIFER HEALTH SOLUTIONS word and logo marks registered, inter alia, in the USA for healthcare management services with first use in commerce recorded as 2008. It owns coniferhealth.com and owns common law rights in its CONIFER marks.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trademarks using the distinctive part of them CONIFER and adding only the gTLD “.careers” which does not prevent such confusing similarity.
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 used for an e mail phishing scam referring to the Complainant, using its address, the name of one of the Complainant’s employees and the Complainant’s logo. The Domain Name has also been used for commercial pay per click links. These uses are not a bona fide offering of goods or services or a legitimate noncommercial or fair use. They are registration and use in bad faith in actual knowledge of the Complainant and its rights and confusing Internet users and disrupting the Complainant’s business. The Domain Name has also been falsely registered in the name of the employee whose name has been used by the Respondent in the phishing scam.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant and/or members of its group are the owner of a number of marks including CONIFER, such as CONIFER HEALTH SOLUTIONS word and logo mark registered, inter alia, in the USA for healthcare management services with first use in commerce recorded as 2008. It owns coniferhealth.com and common law rights in its CONIFER marks.
The Domain Name registered in 2022 has been used for an e mail phishing scam referring to the Complainant and using its address, the name of one of the Complainant’s employees and the Complainant’s logo. It has also been falsely registered in the name of the same employee (redacted in this judgement) and used for commercial pay per click links.
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 consists of the distinctive and first part of the Complainant’s word mark CONIFER HEALTH SOLUTIONS (registered, inter alia, in the USA for heath management services and used since at least 2008), namely ‘CONIFER’ in which it also has common law rights, and the gTLD “.careers”.
The mere abbreviation of a mark to its first and most distinctive word combined with a gTLD does not sufficiently distinguish a disputed domain name from a mark. See Sainato's Restaurant and Catering Limited v. chen xue ming, FA 1781748 (Forum June 4, 2018) (finding the <sainatos.com> domain name is confusingly similar to the SAINATO’S RESTAURANT mark as it “appends the gTLD “.com” to an abbreviated version of the mark.”). As such the Panelist finds that adding the gTLD .careers to the Complainant’s common law CONIFER mark or removing the non distinctive parts of the Complainant’s registered mark does not prevent confusing similarity between the Domain Name and the Complainant’s CONIFER marks.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with CONIFER, a mark in which the Complainant has rights.
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 CONIFER its common law mark and the distinctive part of its registered 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 has been used in a fraudulent phishing attempt impersonating the Complainant, referring to the Complainant and using its address, the name of one of the Complainant’s employees and the Complainant’s logo. This is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’.).
The Domain Name has also been used for commercial pay per click links which does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the distinctive part of the Complainant’s registered mark and also its common law mark CONIFER which is known for healthcare management services and use the Domain Name in the above manner.
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
Impersonating a complainant by use of a domain name containing the distinctive part of a complainant’s mark in a fraudulent phishing attempt is disruptive and evinces bad faith registration and use. See Microsoft Corporation v. Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent emails constituted bad faith registration and use pursuant to Policy 4(b)(iii). Reference to the Complainant and the use of its address, the name of one of the Complainant’s employees and the Complainant’s logo as part of the phishing scheme shows the Respondent had actual knowledge of the Complainant, its rights, business and services.
The Domain Name has also been falsely registered in the name of the same employee of the Complainant whose name (redacted in this judgement) has been improperly used by the Respondent in the phishing e mail scam. Providing false contact details to the WhoIS database can be bad faith registration and use per se.
Use for pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain and can also indicate actual knowledge of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her site by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the site or goods or services offered on it likely to disrupt the business of the Complainant. See Health Republic Insurance Company v. Above.comLegal, FA 1506001622088, (Forum July 10, 2015) re diversion to pay per click links.
As such, the Panelist believes 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)(iii) and 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <conifer.careers> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 15, 2022
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