Healogics, Inc. v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2303002034414
Complainant is Healogics, Inc. (“Complainant”), USA, represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ilearnhealogics.com>, registered with Media Elite Holdings Limited.
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on March 3, 2023; Forum received payment on March 3, 2023.
On March 7, 2023, Media Elite Holdings Limited confirmed by e-mail to Forum that the <ilearnhealogics.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the names. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 March 8, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 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@ilearnhealogics.com. Also on March 8, 2023, 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 April 2, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant offers computer software services. Complainant has rights in the HEALOGICS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,475,733 registered January 28, 2014). The disputed domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the HEALOGICS mark in its entirety and merely adds the term “ilearn” and adds the “.com” generic top-level domain (“gTLD”)
ii) Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the HEALOGICS mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a page hosting hyperlinks to various websites, relating to various industries.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the HEALOGICS mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
1. The disputed domain name was registered on November 15, 2022.
2. Complainant has established rights in the HEALOGICS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,475,733 registered January 28, 2014).
3.The disputed domain name resolves to a website hosting hyperlinks to various websites, relating to various industries.
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”).
Complainant asserts rights in the HEALOGICS mark based upon the registration with the USPTO (e.g., Reg. No. 4,475,733 registered January 28, 2014). Registration of a mark with the USPTO is a valid showing of rights in a mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the HEALOGICS mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy 4(a)(i).
Complainant contends that the disputed domain name <ilearnhealogics.com> is identical or confusingly similar to Complainant’s HEALOGICS mark as it contains the HEALOGICS mark in its entirety and merely adds the term “ilearn” and the “.com” gTLD. The addition of a generic or descriptive phrase and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the HEALOGICS mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Domain Administrator,” and there is no other evidence to suggest that Respondent was authorized to use the HEALOGICS mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name resolves to a webpage hosting hyperlinks to various websites, relating to various industries. Past panels have found that using a confusingly similar domain name to display unrelated links does not demonstrate a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). See also State Farm Mutual Automobile Insurance Company v. ICS INC., FA1532398 (Forum December 31, 2013) (finding respondent is not making a bona fide offering of goods and services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the domain name resolves to a parked page containing click-through links for various products and services unrelated to complainant). Complainant provides screenshots of the disputed domain name resolving to a page offering third party links related to various industries. Therefore, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent is using the disputed domain name for commercial gain by hosting a website with hyperlinks to various websites, relating to various industries. Use of a domain name to host links unrelated or related to Complainant for commercial gain is indicative of bad faith under Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The domain name resolves to a page that lists hyperlinks related to accounting and business services. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv). The Panel recalls that Complainant provides screenshots of the disputed domain name’s resolving webpage hosting hyperlinks to various websites, relating to various industries. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).
Complainant further contends that Respondent had knowledge of Complainant’s rights in the HEALOGICS mark at the time of registering the disputed domain name. To support this assertion, Complainant points to its trademark registrations. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the HEALOGICS mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ilearnhealogics.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: April 5, 2023
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