Kadlec Regional Medical Center v. Alexandr Koval
Claim Number: FA2210002015985
Complainant is Kadlec Regional Medical Center ("Complainant"), United States, represented by Russell C. Pangborn of Seed IP Law Group, United States. Respondent is Alexandr Koval ("Respondent"), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kadlecmed.org>, registered with Atak Domain Bilgi Teknolojileri A.S.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on October 13, 2022; Forum received payment on October 13, 2022.
On October 21, 2022, Atak Domain Bilgi Teknolojileri A.S. confirmed by email to Forum that the <kadlecmed.org> domain name is registered with Atak Domain Bilgi Teknolojileri A.S. and that Respondent is the current registrant of the name. Atak Domain Bilgi Teknolojileri A.S. has verified that Respondent is bound by the Atak Domain Bilgi Teknolojileri A.S. 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 October 25, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@kadlecmed.org. Also on October 25, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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.
An email message was received from Respondent on October 26, 2022, stating that the disputed domain name was purchased at a domain name auction.
Having received no formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 has offered medical and healthcare services under the KADLEC mark in the state of Washington for more than 65 years. Complainant owns a United States trademark registration for KADLEC in standard character form. Complainant owned the disputed domain name <kadlecmed.org> from October 1998 until October 2019 and used it to provide information about its services.
Respondent is the current registrant of the disputed domain name <kadlecmed.org>. The domain name is being used for a website that offers generic pharmaceutical products for sale. The website contains a prominent heading that reads "Trusted Tablets Online Pharmacy — Cooperating with Medical Centers," and an inconspicuous disclaimer stating that the domain name was previously used by Complainant but is now owned by an unrelated entity, "Trusted Tablets online pharmacy." Complainant alleges that Respondent registered and is using the domain name to trade off of the goodwill associated with Complainant's mark. Complainant states that Respondent is not commonly known by the disputed domain name or the KADLEC mark, is not a licensee of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <kadlecmed.org> is confusingly similar to its KADLEC mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
As noted above, Respondent failed to submit a Response in this proceeding. In email correspondence, Respondent stated as follows:
Hello! The domain name was bought officially at a domain name auction. After the previous owner has disappeared, renew the registration period.
The domain does not use the previous information and there are no previous contact details and other information that would infringe copyright.
I did not steal the domain, but bought it at a completely legal auction.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <kadlecmed.org> incorporates Complainant's registered KADLEC trademark, adding the generic term "med" and the ".org" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Carilion Clinic v. Robert Shettles, FA 1930585 (Forum Mar. 1, 2021) (finding <carilionmedical.org> confusingly similar to CARILION); Philadelphia Health & Education Corp. d/b/a Drexel University College of Medicine & affiliate Drexel University v. David Ehrlich, D2006-0118 (WIPO Apr. 3, 2006) (finding <drexelmed.com> confusingly similar to DREXEL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It is being used for a website that offers pharmaceutical products for sale. The website refers to the seller as "Trusted Tablets" and "Trusted Tablets Online Pharmacy"; it appears to use KADLEC only in the domain name and within the statement describing Complainant's prior use of the domain name.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith can be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered or acquired a domain name that combines Complainant's registered mark with a generic term describing its business, and is using the domain name to attract users to a website that offers related products for sale. The references to Complainant on Respondent's website show Respondent's awareness of Complainant, and in the Panel's view their purpose is likely to attract additional users to the site, contributing to rather than dispelling confusion regarding a connection with Complainant. The Panel infers that Respondent registered or acquired the disputed domain name knowing of its prior use by Complainant and its correspondence to Complainant's name and mark, and is using the domain name to attract Internet users for commercial gain by creating confusion with Complainant's mark. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kadlecmed.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 18, 2022
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