Iowa Health System d/b/a UnityPoint Health v. Mechy Feferkom
Claim Number: FA2307002055030
Complainant is Iowa Health System d/b/a UnityPoint Health (“Complainant”), represented by Anthony Nwachukwu of Black Chambers Inc., New York, USA. Respondent is Mechy Feferkom (“Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <unltypolnt.org>, (‘the Domain Name’) registered with HOSTINGER operations, UAB.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on July 27, 2023; Forum received payment on July 27, 2023.
On July 27, 2023, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <unltypolnt.org> Domain Name is registered with HOSTINGER operations, UAB and that Respondent is the current registrant of the name. HOSTINGER operations, UAB has verified that Respondent is bound by the HOSTINGER operations, UAB 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 July 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 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@unltypolnt.org. Also on July 28, 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 August 18, 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 is the owner of the UNITYPOINT mark, registered, inter alia, in the United States for medical and healthcare services with first use recorded as 2013. It owns and uses UNITYPOINT.org.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s trade mark substituting two letters ‘l’ for both letters ‘i’ in the Complainant’s mark, and adding the gTLD .org neither of which prevents the said confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant. The Domain Name has not been used, so there has been no bona fide offering of goods or services or legitimate non commercial or fair use.
Typosquatting is registration and use in bad faith. The Complainant is concerned about possible phishing.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the UNITYPOINT mark, registered, inter alia, in the United States for medical and healthcare services with first use recorded as 2013. It owns and uses UNITYPOINT.org.
The Domain Name registered in 2023 has not been used.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 consist of a sign confusingly similar to the Complainant's UNITYPOINT mark (which is registered in USA for healthcare and medical services with first use recorded as 2013), substituting two letters ‘l’ for the two letters ‘i’ in the Complainant’s mark and adding the gTLD .org.
The Panel agrees that visually similar misspellings of a Complainant’s mark in a domain name do not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). As such the substitution of the letters ‘i’ with letters ‘l’ in the Complainant’s mark does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy.
The gTLD .org 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 a sign confusingly similar to its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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).
There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum Apr. 20, 2005) (finding inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i)). Nor has there been any non commercial legitimate use made of the Domain Name.
Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA 1610050 (Forum Apr. 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 this Complaint and has not rebutted the prima face 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 the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
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 Mar. 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.”).
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panel holds 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <unltypolnt.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 19, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page