Navitus Health Solutions, LLC v. Jo Joe
Claim Number: FA2305002046967
Complainant is Navitus Health Solutions, LLC (“Complainant”), represented by Tricia L. Schulz of Foley & Lardner LLP, Wisconsin, USA. Respondent is Jo Joe (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <navitus.info>, (‘the Domain Name’) registered with NameSilo, LLC.
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 31, 2023; Forum received payment on May 31, 2023.
On Jun 01, 2023, NameSilo, LLC confirmed by e-mail to Forum that the <navitus.info> Domain Name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 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@navitus.info. Also on June 2, 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 29, 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 owns the registered trade mark NAVITUS in the USA for services related to pharmaceutical prescriptions with first use in commerce recorded as 2003. Its main web site is at navitus.com.
The Domain Name registered in 2023 consists of the Complainant’ mark verbatim and the gTLD .info which do not distinguish the Domain Name from the Complainant’s mark. The Domain Name is therefore identical and confusingly similar to the Complainant’s mark for the purposes of the Policy.
Respondent is not commonly known by the Domain Name or authorised by the Complainant to use the latter’s mark. The Domain Name has not been linked to an active web site. The Respondent is using e mails associated with the Domain Name to impersonate the Complainant for fraudulent purposes attaching documents featuring the Complainant’s mark and logo.
Passing itself off as the Complainant with the intention of diverting communications for the Complainant is clearly illegitimate and is not a bona fide offering of goods or services or a legitimate non commercial fair use.
The use of the Complainant’s logo as part of the fraudulent e mail scheme shows the Respondent has actual knowledge of the Complainant, its rights, business and services. Using an e mail address to pass the Respondent off as the Complainant for fraudulent purposes is bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the registered trade mark NAVITUS in the USA, for services related to pharmaceutical prescriptions with first use in commerce since 2003. Its main web site is at navitus.com.
The Domain Name registered in 2023 has been used for a fraudulent e mail scheme featuring attachments using the Complainant’s mark and logo.
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 NAVITUS trade mark (registered in the USA for, inter alia, services relating to pharmaceutical prescriptions with first use recorded as 2003) and the gTLD .info.
The gTLD .info does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. 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 identical for the purpose of the Policy to a mark in which the Complainant has rights.
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 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 Domain Name has been used in a fraudulent e mail phishing scheme using the Complainant’s mark and logo. This is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services or a legitimate non commercial 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 Respondent has not responded to this Complaint or provided any explanation to counter the prima facie case put forward 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
The use of the Complainant’s mark and logo in the phishing e mail scheme in this case shows that the Respondent is aware of the Complainant, its rights, business and services.
Impersonating a complainant by use of a complainant’s mark in a fraudulent phishing scheme 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 Apr 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).).
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 <navitus.info> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 29, 2023
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