Picis Clinical Solutions, Inc. v. Zsolt Bikadi
Claim Number: FA2303002036494
Complainant is Picis Clinical Solutions, Inc. (“Complainant”), represented by Benjamin W. Janke, Louisiana, USA. Respondent is Zsolt Bikadi (“Respondent”), Hungary.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harrispulsecheck.com>, registered with DropCatch.com 1310 LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on March 20, 2023. Forum received payment on March 20, 2023.
On March 22, 2023, DropCatch.com 1310 LLC confirmed by e-mail to Forum that the <harrispulsecheck.com> domain name is registered with DropCatch.com 1310 LLC and that Respondent is the current registrant of the name. DropCatch.com 1310 LLC has verified that Respondent is bound by the DropCatch.com 1310 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 March 24, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 13, 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@harrispulsecheck.com. Also on March 24, 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 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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, Picis Clinical Solutions, Inc., a wholly owned subsidiary of N. Harris Computer Corporation, is a global provider of clinical information solutions that automate the entire perioperative experience with one contiguous patient record.
Complainant has been operating its website “www.pulsechecked.com” since 2010. Complainant has rights in the PULSECHECK mark through registration with the United States Patent and Trademark Office (“USPTO”) in connection with concrete contracting services and related products. Respondent’s <harrispulsecheck.com> domain name is identical or confusingly similar to Complainant’s PULSECHECK mark.
Respondent lacks rights or legitimate interests in the <harrispulsecheck.com> domain name. Respondent is not commonly known by the domain name, nor has Respondent been authorized by Complainant to use the PULSECHECK mark. Respondent has not used the domain name in connection with a bona fide offering of goods or services as Respondent’s website hosts pay-per-click advertisements for specific medical care facilities, under the guise of an endorsement by the PULSECHECK brand.
Respondent’s use of the word PULSECHECK in the domain name, together with its failure to distinguish itself from the prior domain holder, N. Harris Computer Corporation (Complainant’s parent company), is an illegitimate and illegal use of the domain name.
Respondent registered the <harrispulsecheck.com> domain name in bad faith with actual knowledge of Complainant’s rights in the PULSECHECK mark and did so to attract users by creating a likelihood of confusion for commercial gain. Respondent uses the domain name in bad faith to phish for personal, financial and/or medical information by impersonating Complainant. Respondent’s use of a privacy shield is also indicative of Respondent’s bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 has shown that it has rights in the PULSECHECK mark through registration and assignment of the mark with the USPTO (e.g. Reg. No. 2,323,614, registered on February 29, 2000). Contrary to Complainant’s submission that the mark is registered “in connection with concrete contracting services and related products”, the evidence provided by Complainant shows the mark to be registered for “Computer software for tracking and reporting patient and health care provider information and instruction manuals sold therewith”).
The Panel finds Respondent’s <harrispulsecheck.com> domain name to be confusingly similar to Complainant’s PULSECHECK mark as it merely adds the name “Harris” (the name of Complainant’s parent company), which is insufficient to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level-domain name ("gTLD"), which may be ignored.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <harrispulsecheck.com> domain name was registered by Respondent on August 5, 2022, some two and a half years after the registration of Complainant’s mark. It resolves to a website relating to medical information and health care, displaying the domain name at the top of each page, some of which have pay-per-click links.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <harrispulsecheck.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s PULSECHECK mark when Respondent registered the <harrispulsecheck.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <harrispulsecheck.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 20, 2023
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