DECISION

 

NexHealth, Inc. v. Rachel Clark / Tak Oyeye

Claim Number: FA2312002076565

 

PARTIES

Complainant is NexHealth, Inc. ("Complainant"), represented by David A.W. Wong of Barnes & Thornburg LLP, Indiana, USA. Respondent is Rachel Clark / Tak Oyeye ("Respondent"), Oklahoma, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <nexhealth.site> and <nexhealthcareers.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.

 

Steven M. Levy, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 26, 2023; Forum received payment on December 26, 2023.

 

On December 26, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <nexhealth.site> and <nexhealthcareers.com> domain names are 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 December 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 2024 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@nexhealth.site and postmaster@nexhealthcareers.com. Also on December 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 January 18, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. 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 names be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE RESPONDENTS

In the instant proceedings, Complainant has alleged that, despite the listing of different Registrant names in the respective WHOIS records, the disputed domain names at issue are effectively owned or controlled by the same domain name holder who uses different aliases. It requests that these two domain names be consolidated into the present proceeding. 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." Despite being presented with WHOIS records that name different Registrants, prior Panels have held that consolidation of a case against multiple domain names is appropriate where there are other similarities that indicate a likelihood of common ownership. See, e.g., American Airlines, Inc. v. Ramadhir Singh, WhoisGuard Protected, WhoisGuard, Inc. / Reema Gupta, Ballu Balwant, Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Lucy Lionel, Lucy99, Red Keep, D2021-0294 (WIPO Mar. 11, 2021) (consolidation upheld based on "the similar content and layout of the websites that were linked to the disputed domain names; the fact that all the disputed domain names target a specific sector and the same trademark within this sector; the similar patterns in the disputed domain names; and the identical reaction of the Respondents to the Complaint, not replying to the Complainant's contentions.").

 

Complainant contends that, despite their respective WHOIS records listing different Registrants, the disputed domain names are controlled by the same holder as both of the disputed domain names list the same Registrar and nameservers, both were registered within a few weeks of each other, and both are being used to perpetuate the same fraudulent scam.

 

In light of the above similarities and intersections and in the absence of participation in these proceedings by any party claiming to be a Registrant of these domain names, the Panel determines it is more likely than not that both of the disputed domain names are under common control by the same domain name holder who is using different aliases and has listed false information in its WHOIS records. As such, there is no inequity in consolidating these domain names into the present case, which will proceed against both of them, and their holder will be referred to in the singular as "Respondent".

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a provider of various software and services to healthcare and business organizations. Its goods and services are sold and provided under the trademark NEXHEALTH and it promotes this at its www.nexhealth.com website as well as through its social media accounts. Through its continuous, significant, and substantially exclusive use of the mark, it has established substantial rights and the mark is associated with Complainant in the minds of the public.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

-       Complainant has demonstrated its ownership of rights in the NEXHEALTH trademark and both the <nexhealth.site> and <nexhealthcareers.com> domain names are confusingly similar to the mark;

-       Respondent has no rights or legitimate interests in the disputed domain names as it is not commonly known thereby and its impersonation of Complainant as part of a job interview phishing scam is not a bona fide offering of goods or services and is not a legitimate noncommercial or fair use; and

-       The disputed domain names were registered and are used in bad faith where they are used to impersonate Complainant in an effort to gather sensitive information from users who believe they are being considered for employment with Complainant.

 

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

Complainant asserts rights in the NEXHEALTH mark.¹ Under Policy ¶ 4(a)(i), a complainant is not required to own a registered trademark prior to the registration of the disputed domain name if common law rights in the mark have been establish. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that "The Policy does not require a complainant to own a registered trademark prior to a respondent's registration if it can demonstrate established common law rights in the mark."). Common law rights in a mark may be demonstrated through evidence that the mark has acquired a secondary meaning. See Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including "longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising."). In support of its claim, Complainant submits screenshots of its <nexhealth.com> website, its pages on the LinkedIn and Facebook social media sites, and details of its corporate entity from Crunchbase.com. From this, the Panel finds minimal but sufficient grounds upon which to hold that Complainant possesses common law rights to its NEXHEALTH mark and that this element of Policy ¶ 4(a)(i) is satisfied even without evidence of a trademark registration.

 

Complainant further argues that Respondent's <nexhealth.site> and <nexhealthcarreers.com> domain names are confusingly similar to its NEXHEALTH mark as Respondent only adds either the ".site" gTLD or the generic word "careers" after the mark. Panels have routinely held that the addition of a TLD or a generic term typically does not distinguish the disputed domain name from a complainant's trademark pursuant to Policy ¶ 4(a)(i). See Universal City Studios LLC v. Moniker Privacy Services,

FA 2051532 (Forum July 31, 2023) ("the Panel finds that the disputed [<universalstudiosflorida.com>] domain name is identical to the UNIVERSAL STUDIOS FLORIDA Mark.") Also Starbucks Corporation d/b/a Starbucks Coffee Company v. Waseem A Ali / Micron Web Services, FA 1785616 (Forum June 8, 2018) (finding the <starbucksreal.com> domain name to be confusingly similar to the STARBUCKS mark, as "the addition of the generic term 'real' to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy."). Therefore, the Panel finds that Respondent's <nexhealth.site> and <nexhealthcarreers.com> domain names are confusingly similar to Complainant's NEXHEALTH mark.

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). Should it succeed in this effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("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").

 

Complainant asserts that Respondent has no rights or legitimate interests in the <nexhealth.site> and <nexhealthcarreers.com> domain names because Respondent is not commonly known by the disputed domain names and is not affiliated with Complainant's business. In considering this issue WHOIS information can be used to support a finding that a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Instron Corp. v. Kaner, FA 768859 (Forum Sep. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed "Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't" as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute). Additionally, lack of authorization to use a mark can be further evidence that a respondent is not commonly known by the mark. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) ("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."). Here, the WHOIS information revealed by the concerned Registrar identifies "Tak Oyeye" and "Rachel Clark" as the named registrants of the disputed domain names (these are believed to be false aliases). Additionally, there is no indication that Complainant has granted the Registrant any license, consent, or authorization permitting the Registrant to use the NEXHEALTH mark. Respondent has not filed a Response or made any other submission in this case. Thus, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the domain name under Policy ¶ 4(c)(ii).

 

Complainant further argues that Respondent does not have rights or legitimate interests in the <nexhealth.site> and <nexhealthcarreers.com> domain names because Respondent does not use the domain names for any bona fide offering of goods or services nor does it make a legitimate noncommercial or fair use thereof. Instead, Respondent is using the disputed domain names to impersonate Complainant and fraudulently seek sensitive personal and financial information from individuals by falsely claiming to offer job interviews and employment offers with Complainant. Use of a disputed domain name to send emails impersonating a complainant for fraudulent or phishing purposes clearly does not qualify as a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Elevance Health, Inc. and Carelon Holdings, Inc., Carelon Global Solutions U.S., Inc., Carelon Global Solutions Puerto Rico, L.L.C., Carelon Rx, Inc., and Carelon Behavioral Health Holdings, L.L.C. v. Robert Wilson, FA 2065230 (Forum Nov. 1, 2023) (no rights or legitimate interests found where "Respondent has caused the disputed domain name to be used for a phishing scheme to send fraudulent emails to potential applicants for employment with the Complainant that personated the Complainant, its CARELON trademark, brand and human resources employees, purporting falsely to offer them authentic job opportunities and to induce the applicants to provide personal information…"); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) ("On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)."). Here, Complainant provides screenshots of various messages showing that Respondent uses the email addresses "career@nexhealth.site" and "Rachelclark@nexhealthcareers.com". These messages mention an interview process for job applicants and potential victims are also sent pre-employment forms asking for such sensitive information as bank account numbers, a copy of the applicant's drivers license or passport,  and a signature. The messages also mention that successful job applicants will need to purchase certain computer equipment before starting employment. Finally, submitted into evidence are messages from individuals to Complainant expressing concerns and saying "I wanted to connect to make sure the opportunity was legitimate given that the email you did not match other NexHealth emails I've come across." This evidence shows that Respondent has contacted individuals and attempted to obtain their personal information under the pretense of setting up an interview for employment with Complainant. The mention of obtaining computer equipment is also typical of job offer scams in which the applicant is asked to send funds to the perpetrator. Respondent has not submitted any argument or evidence to explain its actions as anything other than a phishing attempt. As Complainant has made out a prima facie case that has not been rebutted by Respondent, upon a preponderance of the available evidence, the Panel finds that Respondent is not using the domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor is it making a legitimate noncommercial or fair use thereof under Policy ¶ 4(c)(iii).

 

Registration or Use in Bad Faith

Complainant asserts that Respondent registered the disputed domain names with actual knowledge of Complainant's rights in the NEXHEALTH mark based on Respondent's use of the disputed domain names to impersonate Complainant in a job offer phishing scam. Actual knowledge of a complainant's trademark rights may form a solid foundation upon which to establish bad faith and may be inferred when a respondent uses an identical disputed domain name to pass itself off as a complainant. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) ("[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration."). Complainant provides screenshots of messages that shows Respondent impersonating Complainant in a fraudulent job offer scheme in order to collect personal information and funds from an individual job applicant. The messages use a email addresses incorporating the disputed domain names and provide job seekers with forms asking for very sensitive personal and financial information. From this, the Panel finds sufficient evidence that Respondent had actual knowledge of Complainant's rights in the NEXHEALTH mark at the time that it registered the disputed domain names.

 

Complainant further argues that Respondent registered or uses the disputed domain names in bad faith because it impersonates Complainant as a part of a job interview phishing scheme. Use of a disputed domain name to impersonate a complainant in fraudulent emails for the purpose of phishing is evidence of bad faith disruption of a complainant's business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain based on trademark confusion under Policy ¶ 4(b)(iv). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA 1623601 (Forum July 14, 2015) ("Respondent's attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii)."); see also Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Forum Oct. 6, 2015) (finding that Respondent's use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii). The Panel notes that Complainant has provided screenshots of messages and forms showing that Respondent uses the addresses "career@nexhealth.site" and "Rachelclark@nexhealthcareers.com". These messages claim to offer an interview for employment with Complainant and seek to have the potential job applicant complete forms with sensitive personal and financial information. It also tells the individuals that they must obtain certain computer equipment as part of the employment on-boarding process. From this, the Panel finds sufficient evidence to hold that bad faith under Policy ¶ 4(b)(iii) and/or (iv) has been established through Respondent's impersonation and phishing activity. 

 

Finally, Complainant argues that Respondent has provided false WHOIS information when it registered the disputed domain names and that this further demonstrates bad faith. Prior decisions have noted that using false contact information may demonstrate a bad faith attempt to hide one's identity and hinder a trademark owner from attempting to assert its rights. See FIL Limited v. Domain Admin, WhoIs IDCPrivacy Service / Leonard Kitimbo, D2019-1374 (WIPO Aug. 15, 2019) ("Respondent's submission of inaccurate, incomplete, or falsified contact information to the Registrar, without a street name, postcode, or valid telephone number, further supports a finding of Respondent's bad faith."). The Panel notes that Respondent has listed different names and addresses in the Whois records for each of the disputed domain names, which the evidence shows are engaged in the exact same phishing scheme. While there is no proof that Respondent is not identified by either of these names, addresses, etc., against the backdrop of the job offer scam use to which the disputed domain names have been put, the Panel finds it highly likely that Respondent has used false WHOIS information and that this further demonstrates its bad faith in this case 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 <nexhealth.site> and <nexhealthcareers.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Steven M. Levy, Esq., Panelist

Dated: January 21, 2024