Ergocentric Inc. v. Martinscare
Claim Number: FA2205001995752
Complainant: Ergocentric Inc. of Mississauga, Ontario, Canada.
Complainant Representative:
Complainant Representative: Harter Secrest & Emery LLP of Buffalo, New York, United States of America.
Respondent: Martinscare of Ikeja, International, NG.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: XYZ.COM LLC
Registrars: Hostinger, UAB
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Examiner in this proceeding.
Luz Helena Villamil Jimenez, as Examiner.
Complainant submitted: May 10, 2022
Commencement: May 11, 2022
Default Date: May 26, 2022
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of fact:
The case at hand refers to the domain name <healthcentric.xyz>. In accordance with the provisions of URS, Complainant claims:
(i) that the domain name <healthcentric.xyz> is identical or confusingly similar to a word mark for which the Complainant holds a valid national or regional registration and that is in current use;
(ii) that The Registrant has no legitimate right or interest to the domain name, and
(iii) that the domain name was registered and is being used in bad faith such as: Ÿby using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
Complainant asserts that Complainant owns US and Canadian registrations for the HEALTHCENTRIC word mark, part of Complainant's family of CENTRIC registered marks that include ErgoCentric, iCentric, eCentric, 24Centric, MyCentric, AirCentric, EcoCentric and GeoCentric. That Complainant has used its Centric marks continuously since 1990, and that ten years ago, in 2012, Complainant launched the HealthCentric brand for high quality furniture used in health care settings such as hospitals and doctor's offices. Since 2012, Complainant has continuously operated the Healthcentric.com website.
It is also argued that the Registrant recently registered the Healthcentric.xyz domain name, and said registration triggered an alert in Complainant's Trade Mark Clearing House watch service for the HEALTHCENTRIC brand. Complainant is very concerned about the healthcentric.xyz domain name registration, which is likely to cause confusion with Complainant's registered HEALTHCENTRIC brand.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended:
FIRST: [URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
Determined: Finding for Respondent
The process contains documentation demonstrating that the trademark HEALTHCENTRIC is Registered in Canada under No. TMA974,060 as of June 21, 2017. However, while the Complainant in the present case is the company Ergocentric Inc., according to the Certificate of Registration submitted to support the case the holder of the trademark HEALTHCENTRIC is Ergo Industrial Seating Systems, Inc. Certainly this company may have changed its name, but it is not up to the panel to define whether this is the case or not.
In light of the foregoing, and since no support is provided to demonstrate any relationship or link between the trademark holder and the Complainant, the Examiner finds that the complaint does not meet the URS requirement of 1.2.6.1.
SECOND: [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: Finding for Respondent
Aside of expressing the Complainant’s concern as regards the fact that any misuse of the proprietary HEALTHCENTRIC brand by Registrant will be likely to harm not only Complainant but also customers and patients, the Complainant did not submit any argument to demonstrate why it is considered that the Registrant does not have a legitimate right or interest to the domain name. Even though the URS provides an expedite solution to issues involving the registration of domain names which include trademarks owned by third parties, it is a duty of the Complainant to explain why the domain being challenged violates the prior trademark rights. In light of this, the Complaint does not meet the requirement of URS 1.2.6.2.
THIRD: [URS 1.2.6.3] The domain name was registered and is being used in bad faith.
Determined: Finding for Respondent
Again, there is a total absence of arguments from the Complainant as to why the domain name was registered and is being used in bad faith. The examiner considers that it is not enough at all to transcribe in a Complaint the provisions of the URS Procedure, since this is a task that the Complainant shall accomplish, not the Examiner. It is fundamental to remember that as it was initially mentioned, URS Procedure 1.2.6. requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the three elements listed above to obtain an order that a domain name should be suspended.
Due to the above, the Examiner considers that the Complaint does not meet URS Requirement 1.2.6.3, since in accordance with URS procedure the Complainant must present adequate evidence to substantiate that the domain name was registered and is being used in bad faith in violation of the URS.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has NOT demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be RETURNED to the control of Respondent.
<healthcentric.xyz>
Luz Helena Villamil Jimenez, Examiner
Dated: May 26, 2022
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