Laboratory Corporation of America Holdings v. MD Nasir Bin / Smita shetty
Claim Number: FA2305002044387
Complainant is Laboratory Corporation of America Holdings (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is MD Nasir Bin / Smita shetty (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mylabcorp.me> and <mylabcorp.one>, (‘the Domain Names’) 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 12, 2023; Forum received payment on May 12, 2023.
On May 12, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <mylabcorp.me> and <mylabcorp.one> Domain Names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@mylabcorp.me, postmaster@mylabcorp.one. Also on May 17, 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 June 9, 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 ISSUE: 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.” The Domain Names are similarly constructed with the addition of the word ‘my’ and a gTLD, resolve to similar content and share certain identical elements in common. A link on the website at the <mylabcorp.one> domain name previously redirected to the website at the <mylabcorp.me> domain name. The Domain Names use the service provider Cloudflare and registrar NameCheap. The Panel holds that it is more likely than not that the Domain Names are owned by the same underlying entity using false cover names and that this Complaint may proceed against both Domain Names.
A. Complainant
The Complainant is the owner of the mark LABCORP registered, inter alia, in the USA for laboratory related goods and services with first use of the LABCORP mark recorded as 1995.
The Domain Names were registered in 2021 (<mylabcorp.me>) and 2022 (<mylabcorp.one>) and are confusingly similar to the Complainant’s LABCORP mark adding the generic word ‘my’ and a TLD in each case which does not prevent said confusing similarity.
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 been used for web sites purporting to be an ‘official’ employee portal of the Complainant referring to the Complainant and using the Complainant’s LABCORP mark in the masthead showing actual knowledge of the Complainant, its business, rights and services. This is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is registration and use in opportunistic bad faith attracting Internet users for commercial gain and disrupting the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark LABCORP registered, inter alia, in the USA for laboratory related goods and services with first use of the LABCORP mark recorded as 1995.
The Domain Names were registered in 2021 (<mylabcorp.me>) and 2022 (<mylabcorp.one>) and have been used for web sites purporting to be an ‘official’ employee portal of the Complainant referring to the Complainant and passing off as sites of the Complainant, using the Complainant’s LABCORP mark in their mastheads.
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 combine the Complainant’s LABCORP mark (registered, inter alia, in the USA for laboratory related goods and services with first use recorded as 1995), the generic word ‘my’ and the ccTLD .me or the gTLD .one.
The addition of a generic word and a TLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4 (a) (i).) Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”).
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.
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 either of the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 use of the Domain Names is commercial and so cannot be legitimate non commercial use.
The Respondent has used the sites attached to the Domain Names to appear to be official employee portals of the Complainant. The Respondent appears to refer to itself falsely as the Complainant, using LABCORP the mark in a misleading and deceptive way in the mastheads of its sites, passing them off as administered by the Complainant by use of the word ‘official’. As such this cannot amount to the bona fide offering of goods and services. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
It is more likely than not that the Respondent’s purpose is phishing. . (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 Respondent has not answered this Complaint and has not 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 either of the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above the Respondent's use of the Domain Names is commercial and it is using them to fraudulently offer services not associated with the Complainant in a confusing manner. The use of the Complainant’s LABCORP mark in the masthead and references to the Complainant on the web site attached to the Domain Names makes it clear that the Respondent was aware of the significance of the LABCORP name and the Complainant and its rights, business and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or the Respondent’s web sites and services offered on them, designed to disrupt the business of the Complainant. See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy 4(b)(iii).); See also CAN Financial Corporation v. William Thomson/CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that Respondent had engaged in bad faith under Policy 4 (b)(iv) by using a confusingly similar domain name to attract internet users where it offered competing services).
Respondent uses the Domain Name to engage in apparent phishing. The use of a disputed domain name in furtherance of a phishing scheme is considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Further the use of the same and similar material on both sites, the representation that both sites are ‘official’, using the Complainant’s mark in the mastheads of the sites and the use of aliases for registration suggest a pattern of bad faith activity.
See The Toronto-Dominion Bank v. Ryan G Foo/PPA Media Services/Jinesh Shah/WhoIs Privacy Corp, FA 1408001576648 (Forum Jan. 12, 2015) (Respondent’s multiple registrations relating to Complainant’s marks were independently sufficient to constitute a pattern as described by Policy 4 (b)(ii).)
Using false details for the WhoIS database is also bad faith per se. Providing false information at the time of a domain name’s registration may be evidence of respondent’s bad faith registration and use under Policy 4(a)(iii). See Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). Here in the context of phishing providing false address details seems clearly in bad faith.
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith under paragraphs 4 (b) (ii), (iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mylabcorp.me> and <mylabcorp.one> Domain Names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 12, 2023
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