DECISION

 

Medline Industries, LP v. elecher shen

Claim Number: FA2311002070428

PARTIES

Complainant is Medline Industries, LP ("Complainant"), represented by Janet A. Marvel of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is elecher shen ("Respondent"), United Kingdom.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <medlinepartner.com>, registered with NameCheap, Inc..

 

PANEL

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 9, 2023; Forum received payment on November 9, 2023.

 

On November 10, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <medlinepartner.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 November 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 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@medlinepartner.com. Also on November 14, 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 December 5, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is the largest privately held manufacturer and distributor of healthcare supplies in the United States. Since at least as early as 1967, Medline has offered a wide variety of healthcare products and services under its MEDLINE marks. Today, Complainant's products can be found in most hospitals, extended-care facilities, surgery centers, physician offices, home health agencies, and many retail outlets. Complainant is the market leader in several product categories, including medical examination gloves, durable medical equipment, surgical procedure tray kits, and medical drapes and gowns. Complainant has rights in the MEDLINE mark based on registration in the United States in 1970. As a result of Complainant's extensive sales and advertising efforts, consumers throughout the United States and the world have come to recognize MEDLINE as an identifier of Complainant and its offerings. The mark is famous.

 

Complainant alleges that the disputed domain name is confusingly similar to its MEDLINE mark because it wholly incorporates the mark and merely adds the generic/descriptive term "partner" and the "com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or permitted Respondent to use the MEDLINE mark in any way. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website mimics Complainant's legitimate website, displaying Complainant's mark and distinctive logo, and material and photographs copied from Complainant's legitimate website.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by using it to confuse internet users into believing that Respondent's domain name is affiliated with Complainant. Respondent's use of the disputed domain name will perpetuate fraud in hopes that consumers will associate the domain name with Complainant and give away personal information. Respondent had constructive or actual knowledge of Complainant's rights in the MEDLINE mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark MEDLINE and uses it provide healthcare supplies.

 

Complainant's rights in its marks date back to 1970.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website mimics Complainant's legitimate website, displaying Complainant's mark and distinctive logo, and material and photographs copied from Complainant's legitimate website.

 

DISCUSSION

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").

 

Identical and/or Confusingly Similar

The disputed domain name incorporates Complainant's MEDLINE mark in its entirety and merely adds the generic/descriptive term "partner", together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). Here, the WHOIS information of record identifies "elecher shen" as the registrant of the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Both the disputed domain name itself, and the content of the resolving website, falsely suggest that they are associated with the Complainant. That is not a fair or legitimate use of the disputed domain name. Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "Fundamentally, a respondent's use of a domain name will not be considered 'fair' if it falsely suggests affiliation with the trademark owner …". See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014); see also Qualcomm Incorporated v. Qualcomm Tech, FA 2004546 (Forum Aug. 17, 2022) (finding that a resolving website that "mimics Complainant's website, display[s] Complainant's mark, logo, and tagline; and it displays links to Complainant's own social media platforms" is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of the disputed domain name). Consequently the Panel finds that Respondent has failed to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established "[s]ince the disputed domain names contain entire versions of Complainant's marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant's affiliation with the resulting search engine website."). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and logo, together with material copied from Complainant's legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith registration and use under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <medlinepartner.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: December 5, 2023