Avails Medical, Inc. v. Sandra Wales
Claim Number: FA2305002043844
Complainant is Avails Medical, Inc. (“Complainant”), represented by Armand Andonian, California, USA. Respondent is Sandra Wales (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <availsmedicals.com>, (the “Domain Name”) registered with NameCheap, 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 May 9, 2023; Forum received payment on May 9, 2023.
On May 10, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <availsmedicals.com> 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 May 10, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 30, 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@availsmedicals.com. Also on May 10, 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 May 31, 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 Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark AVAILS MEDICAL, registered, inter alia, in the USA for medical devices with first use recorded as 2022. It owns availsmedical.com.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s mark adding only the letter ‘s’ and the gTLD .com none of which prevents the said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain does not resolve to any web site, but has been used for a fraudulent email scheme using the Complainant’s AVAILS MEDICAL mark spelt correctly. This cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith.
Typosquatting per se is bad faith registration and use and an indication of lack of rights and legitimate interests.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark AVAILS MEDICAL, registered, inter alia, in the USA for medical devices with first use recorded as 2022. It owns availsmedical.com.
The Domain Name registered in 2023 has been used for a fraudulent email scheme.
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 AVAILS MEDICAL mark (which is registered in the USA for medical devices with first use recorded as 2022) adding only a letter ‘s’ and the gTLD .com.
The Panel agrees that misspellings such as an additional letter does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015) (where an additional ‘c’ was added).
The gTLD .com does not serve to distinguish a domain name from a complainant’s mark. 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 confusingly similar to the Complainant’s registered mark.
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 Domain Name has been used in a fraudulent phishing attempt using the Complainant’s mark spelt correctly. This is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’.)
The Domain Name appears to be a typosquatting registration differing by only one letter from the Complainant’s mark. Typosquatting is also an indication of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum April 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 the 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 legitimate interests 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 a complainant’s mark in a fraudulent phishing attempt 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 April 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).)
The use of the Complainant’s mark spelt correctly in the Respondent’s fraudulent phishing email scheme in this case shows that the Respondent is aware of the Complainant, its rights, business and services.
The Domain Name seeks 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. 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 March 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.”).
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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <availsmedicals.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 1, 2023
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