MedImpact Healthcare Systems, Inc. v. Zhi Chao Yang / YangZhiChao
Claim Number: FA2302002033141
Complainant is MedImpact Healthcare Systems, Inc. (“Complainant”), represented by Susan Meyer of Gordon Rees Scully Mansukhani LLP, California, USA. Respondent is Zhi Chao Yang / YangZhiChao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <medimpactdirest.com>, <medimpactirect.com>, <medimpactdirct.com>, <medimpactdirec.com>, and <medimpactdiret.com> (‘the Domain Names’) registered with Cloud Yuqu LLC and 22net, 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 Forum electronically on February 23, 2023; The Complaint was submitted in both Chinese and English. Forum received payment on February 23, 2023.
On February 23, 2023 and February 24, 2023, Cloud Yuqu LLC and 22net, Inc. confirmed by e-mail to Forum that the <medimpactdirest.com>, <medimpactirect.com>, <medimpactdirct.com>, <medimpactdirec.com> and <medimpactdiret.com> Domain Names are registered with Cloud Yuqu LLC and 22net, Inc. and that Respondent is the current registrant of the names. Cloud Yuqu LLC and 22net, Inc. have verified that Respondent is bound by the Cloud Yuqu LLC and 22net, Inc. registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 28, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of March 20, 2023 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@medimpactdirest.com, postmaster@medimpactirect.com, postmaster@medimpactdirct.com, postmaster@medimpactdirec.com, and postmaster@medimpactdiret.com. Also on February 28, 2023, the Chinese and English 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 March 26, 2023 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 Names be transferred from Respondent to Complainant.
Preliminary Issues
Language of Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” As the Complainant has submitted Respondent’s names for each domain name are identical, allowing for differences only in spacing and for the arrangement of the last name, which sometimes appears first, as is customary in the Chinese language, or sometimes appears last, which is customary in the English language. Second, the phone numbers and fax numbers provided are identical. Third, though neither physical address appears to be complete, the physical addresses are nonetheless substantially similar, with the same street name (Qi Men Lu), same city (He Fei Shi), same province (An Hui), and the same country (China). Finally, the websites for the three domain names appear to be identical and/or substantially similar. Accordingly the Panel determines that the Domain Names have all been registered by the same person and may properly be dealt with together in this Complaint.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark MEDIMPACT, registered, inter alia, in the USA for health care management services with first use in commerce recorded as 1989. It operates mail order services at medimpactdirect.com.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s mark containing it in its entirety and adding misspellings of the generic word ‘direct’, and the gTLD.com (all being typosquatting registrations differing only by one letter from the Complainant’s medimpactdirect.com domain name).
The Respondent does not have rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorised by the Complainant.
The Domain Names have each been used for a sites with competing pay per click links.
The Respondent’s use is not a bona fide offering of services or a legitimate non commercial or fair use. The Domain Name has been registered and used in typical opportunistic bad faith to take advantage of the Complainant’s trade mark. Typosquatting is bad faith per se. The Respondent has been the subject of a number of adverse decisions under the Policy including a case where the Respondent previously targeted the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MEDIMPACT, registered, inter alia, in the USA for health care management services with first use in commerce recorded as 1989. It operates mail order services at medimpactdirect.com.
The Domain Names registered in 2022 have been used for competing pay per click links. The Respondent has been the subject of a number of adverse decisions under the Policy including a case where the Respondent previously targeted the Complainant.
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 Names in this Complaint each combine the Complainant’s MEDIMPACT mark (registered, inter alia, in the USA for health management services and used since 1989) with a misspelling of the generic word ‘direct’, and the gTLD .com which does not prevent confusing similarity between the Domain Name and the Complainant’s mark per Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ ”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 finds that the Domain Names are each confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. 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 September 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 Respondent has used the sites attached to the Domain Names to link to third party businesses that compete with the Complainant. He does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate non commercial or fair use. See Ashley Furniture Industries Inc v domain admin /private registrations aitken Gesellschaft, FA 1506001626253 (Forum July 29, 2015)(linking to pay per click links does not amount to a bona fide offering of goods and services or a legitimate non commercial fair use).
The Domain Names appear to be typosquatting registrations all essentially differing from the Complainant’s medimpactdirect.com domain name by a single letter. Typosquatting is indicative of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Names seek to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Additionally, in the opinion of the panelist the use made of the Domain Names in relation to the Respondent’s pages is confusing and disruptive in that visitors to the sites attached to the Domain Names might reasonably believe they are connected to or approved by the Complainant as they link to competing services under a domain name containing the Complainant’s mark. The use for this purpose shows that the Respondent is aware of the Complainant and its business, services and rights. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites or services offered on them 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.
The Panel also notes the adverse decisions against the Respondent under the Policy including in another case involving the Complainant’s mark indicating a pattern of activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA1405001558045 (Forum July 10, 2014) (finding that the respondent’s registration of multiple domain names in the instant proceeding and prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(ii),(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 <medimpactdirest.com>, <medimpactirect.com>, <medimpactdirct.com>, <medimpactdirec.com> and <medimpactdiret.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 26, 2023
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