DECISION

 

Cerner Innovation Inc. v. Domain Administrator

Claim Number: FA2311002071821

PARTIES

Complainant is Cerner Innovation Inc. ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is Domain Administrator ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <cenerhealth.com>, registered with Above.com Pty Ltd..

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 20, 2023; Forum received payment on November 20, 2023.

 

On November 22, 2023, Above.com Pty Ltd. confirmed by e-mail to Forum that the <cenerhealth.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 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@cenerhealth.com. Also on November 27, 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 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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 contends as follows:

 

CERNER HEALTH is a patient centric system, providing patients with one centralized place for all the information needed to manage their and their family's health.

 

Complainant owns USPTO trademark registrations of CERNER and CERNER HEALTH.

 

The at-issue domain name is confusingly similar to both Complainant's CERNER and CERNER HEALTH marks. The at-issue domain name contains both marks and differs only by Respondent's removal of the marks' first "r", and the addition of the ".com" top level.

 

Respondent has no rights or legitimate interests in the at-issue domain name. Respondent's actions are not a bona fide offering of goods or services under Policy ¶ 4(c)(i). Respondent's at-issue domain name directs users to a rotating series of third-party websites under a method that is sometimes known as the "Automatic Rapid Redirection to Malware" or ARRM. In this form of registration abuse, internet users are ultimately forwarded to a site that attempts to install malware on the user's computer. Such use tarnishes Complainant's trademarks. Respondent also offers the domain name for sale. Respondent is not commonly known by the domain name and Complainant has not authorized Respondent to use its trademarks.

 

Respondent registered and used the at-issue domain name in bad faith. Respondent intentionally attempts to attract, for commercial gain, internet users, by creating a likelihood of confusion with the complainant's mark as to source, sponsorship, affiliation, or endorsement of activities carried out under its domain name. Respondent had knowledge of Complainant's trademarks when it registered CERNER HEALTH as a domain name. The resolution of <cenerhealth.com>to various third-party pages, pay-per-click links and malware, also supports the conclusion that Respondent registered and uses the domain in bad faith. Respondent's use of the domain name is disruptive to Complainant's business. The Respondent's <cenerhealth.com> domain name is provisioned to allow for email which may be used in the future for phishing. Respondent failed to respond to a cease-and-desist letter from Complainant which also supports a finding of bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the CERNER HEALTH mark.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in its CERNER HEALTH trademark.

 

Respondent used the at-issue domain name to facilitate the distribution of malware and host pay-per-click links.

 

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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's USPTO registration for CERNER or for CERNER HEALTH is sufficient to demonstrate Complainant's rights in a mark for the purposes of Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant's rights in the HOME DEPOT mark).

 

Respondent's <cenerhealth.com> domain name contains a recognizable misspelled version of Complainant's CERNER HEALTH trademark less its domain name impermissible space where the trademark's first letter "r" is removed from the mark and all is followed by the ".com" top level domain. The differences between the at-issue domain name and Complainant's trademark are insufficient to distinguish one from the other for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that the at-issue domain name is confusingly similar to Complainant's CERNER HEALTH trademark. 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."); see also, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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.").

 

Rights or Legitimate Interests

Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

The WHOIS information for <cenerhealth.com> identifies the domain name's registrant as "Domain Administrator" and the record before the Panel contains no evidence showing that Respondent is commonly known by the <cenerhealth.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <cenerhealth.com> for the purposes of Policy ¶ 4(c)(ii). See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) ("Here, the WHOIS information lists "er nong wu" as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).")

 

Respondent uses <cenerhealth.com> to direct internet users to a rotating series of third-party websites under what is sometimes known as the "Automatic Rapid Redirection to Malware", and to pay-per-click links. Users are eventually forwarded to a site that attempts to install malware on the user's computer, or to pay-per-click links. Respondent's use of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a respondent's use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses "failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)");

 

Registration and Use in Bad Faith

As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

First, Respondent uses its confusingly similar <cenerhealth.com> domain name to address a function that directs users to various malware delivery websites on a rotating basis. The function also directs users to webpages displaying pay-per-click hyperlinks to third-parties. Using the confusingly similar domain name in such a manner shows Respondent's bad faith disruption of Complainant's business and Respondent's attempt to attract internet users for commercial under Policy ¶¶ 4(b)(iii) and (iv). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com, FA 1621663 (Forum July 2, 2015) ("In addition, Respondent has used the disputed domain name to install malware on Internet users' devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii)."); see also, Plain Green, LLC v. wenqiang tang, FA 1621656 (Forum July 1, 2015) (finding that the respondent's use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv));

 

Furthermore, Respondent makes a general offer to sell the domain name for an amount in excess of its reasonably related costs. Doing so shows Respondent's bad faith registration and use of the domain name per Policy ¶ 4(b)(i). See Educ. Testing Serv. v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith).

 

Next, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the malformed string in a domain name hoping that internet users will accidently type such string when searching for products or services associated with the target trademark and/or that some internet users will misread the misspelled trademark laden domain name and confuse it with the domain name's target trademark. Although Complainant's CERNER HEALTH trademark's first "r" is removed when seen in the at-issue domain name Complainant's trademark may nevertheless be presumed and its misspelling overlooked. Additionally, an internet user seeking Complainant might omit the mark's first "r" key when typing Complainant's trademark into a browser or search engine. Respondent's intentional misspelling of CERNER HEALTH within Respondent's <cenerhealth.com> domain name is indicative of Respondent's desire to use the domain name to inappropriately exploit Complainant's trademark. Respondent's typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that "[b]y registering the 'typosquatted' domain name in [Complainant's] affiliate program, Respondent profits on the goodwill of [Complainant's] protected marks and primary Internet domain names," which is evidence of bad faith registration and use).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the CERNER HEALTH mark when Respondent registered <cenerhealth.com> as a domain name. Respondent's actual knowledge is apparent from the notoriety of Complainant's trademark and from Respondent's overt misspelling of Complainant's trademark in forming the at-issue domain name. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name).

 

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 <cenerhealth.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: December 19, 2023