Availity, L.L.C. v. zhangwei
Claim Number: FA2207002003540
Complainant is Availity, L.L.C. (“Complainant”), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is zhangwei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availlity.com>, registered with Sav.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 8, 2022; the Forum received payment on July 8, 2022.
On July 11, 2022, Sav.com, LLC confirmed by e-mail to the Forum that the <availlity.com> domain nam is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.com, 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 13, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 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@availlity.com. Also on July 13, 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 August 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it offers services related to healthcare communications media. Complainant has rights in the AVAILITY mark through its registration in the United States in 2002.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AVAILITY mark as it consists of a misspelling of the mark (an extra letter “l” is added), merely adding the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark in any way. Respondent is not using the disputed domain name for any bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, users are redirected to web sites which offer install links for software which end up being malware. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to install malware on users’ computers. Additionally, Respondent engages in typosquatting and registered the domain name with a privacy service. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AVAILITY mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AVAILITY and uses it to provide communication services.
Complainant’s rights in its mark date back to 2002.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to direct users to websites which offer install links for software which end up being malware.
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 disputed domain name consists of a misspelling of Complainant’s AVAILITY mark (an extra letter “l” is added), merely adding the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a letter and the “.com” gTLD is insufficient in differentiating from the mark. See Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). Here, the WHOIS information identifies the registrant as “zhangwei”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to direct users to websites which offer install links for software which end up being malware. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to install malware on users’ devices is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to attempt to install malware on users’ devices. Under Policy ¶ 4(a)(iii), using a disputed domain name to install malware on users’ devices is evidence of bad faith registration and use. See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, Respondent has engaged in typosquatting: the disputed domain name is a misspelling of Complainant’s mark. Under Policy ¶ 4(a)(iii), taking advantage of a misspelling of a mark constitutes typosquatting and is thus evidence of bad faith. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii) on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <availlity.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 5, 2022
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