Intermountain Healthcare, Inc. v. Lukas Edwood / Intermountain healthcare
Claim Number: FA2210002017293
Complainant is Intermountain Healthcare, Inc. (“Complainant”), represented by Justin B. Perri of Blackstone Law Group LLP, US. Respondent is Lukas Edwood / Intermountain healthcare (“Respondent”), Nevada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <intermountainhealthcare.works>, (‘the Domain Name’) registered with NameCheap, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on October 24, 2022; Forum received payment on October 24, 2022.
On October 25, 2022, NameCheap, Inc. confirmed by e-mail to Forum that the <intermountainhealthcare.works> 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 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 e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@intermountainhealthcare.works. Also on October 25, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trade mark INTERMOUNTAIN HEALTHCARE registered, inter alia in the USA for health related services with first use recorded as 1975.
The Domain Name registered in 2022 is identical to the Complainant’s trade mark including it in its entirety adding only the gTLD .works.
Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant. The Domain Name is being used for a fraudulent e mail employment scheme using the Complainant’s name and the name of one of its employees and to point to third party competing commercial links. This is not a bona fide offering of goods and services or a noncommercial legitimate or fair use. It is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark INTERMOUNTAIN HEALTHCARE registered, inter alia in the USA for health related services with first use recorded as 1975.
The Domain Name registered in 2022 has been used for a fraudulent e mail scheme using the Complainant’s name and the name of one of its employees, and to point to third party competing 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 Complainant's INTERMOUNTAIN HEALTHCARE mark (which is registered, inter alia, in the USA for health related services and has been used since 1975) and the gTLD .works.
The gTLD .works does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is identical for the purposes of the Policy to 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 Respondent to use its mark. Although INTERMOUNTAIN HEALTHCARE appears on the WhoIs details the Domain Name was not registered until 2022 and there is no corroborating evidence to show that the Respondent is commonly known by the Domain Name. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name).
The Domain Name has been used in a fraudulent e mail scheme using the INTERMOUNTAIN HEALTHCARE name and the name of one of the Complainant’s employees, and to point to hyperlinks not connected with the Complainant. The fraudulent e mail scheme is deceptive and amounts to passing off and the use for pay per link links is confusing. As such these uses cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) re fraudulent e mail schemes and See McGuireWoods LLP v. Mykhailo Loginov/Loginov Enterprises doo, FA1412001584837 (Forum Jan 22, 2015) re competing pay per click links.
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 the complainant’s mark in a fraudulent e mail scam 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 e mails constituted bad faith registration and use pursuant to Policy 4 (b)(iii).)
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site for pay per click links is confusing and disruptive in that visitors to the site might reasonably believe the links on it are connected to or approved by the Complainant as they offer competing services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or services offered on it likely to disrupt the business of the Complainant. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA 1760954 (Forum January 8, 2018) and Capital One Financial Corp DN Manager/Whois-Privacy.net Ltd, FA1504001615034 (Forum June 4, 2015).
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 para 4 (b)(iii) and (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 <intermountainhealthcare.works> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 20, 2022
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