NATIONAL ARBITRATION FORUM

DECISION

Healogics, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico

Claim Number: FA2401002077781

PARTIES

Complainant is Healogics, Inc. ("Complainant"), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico ("Respondent"), Panama.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwhealogics.com>, registered with GoDaddy.com, LLC.

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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 4, 2024; Forum received payment on January 4, 2024.

On January 4, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <wwwhealogics.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 January 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 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@wwwhealogics.com. Also on January 5, 2024, 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 26, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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

This Complaint is based on Complainant's HEALOGICS mark. Complainant has used the HEALOGICS mark to identify a wide variety of goods and services since at least as early as 2012. Complainant owns numerous United States registrations for its HEALOGICS mark in the fields of medicine, wound treatment, wound prevention, and disease management. See HELOGICS Reg. No. 4475733 reg. 1/28/2014, first use 4/25/12.

Complainant uses the HEALOGICS mark to identify its goods and services in a variety of communications media, including on the <www.healogics.com> website. Complainant also advertises its HEALOGICS brand goods and services on social media sites like Facebook, Twitter, and Instagram, Complainant has established considerable goodwill in the HEALOGICS mark, which is well recognized by the consuming public.

Because Complainant owns U.S. trademark registrations of the HEALOGICS mark, Complainant has rights in its HEALOGICS mark. Furthermore, the registered domain name <wwwhealogics.com> is confusingly similar to Complainant's HEALOGICS mark. The registered <wwwhealogics.com> domain name consists of Complainant's HEALOGICS mark, then simply adds the generic term "www" and the .com top level domain name ("TLD").

Respondent has no right to use the HEALOGICS mark as part of the confusingly similar domain name <wwwhealogics.com>.

Respondent has registered and is using the <wwwhealogics.com> domain name in bad faith.

First, Complainant contends that Respondent has registered and is using the <wwwhealogics.com> domain name to trick users to install malware on the user's computer. Use of a domain name confusingly similar to a well-known trademark to trick users into installing malware onto their computers is bad faith registration.

Second, Respondent has engaged in typosquatting which is evidence of bad faith. Respondent has adopted Complainant's entire HEALOGICS mark as a domain name and then simply added "www" to the front of it and the ".com" TLD to create a domain name that is a common typographical error which consumers would make when trying to reach Complainant's legitimate <healogics.com> website. Respondent is then benefitting from diverting those customers to Respondent's own <wwwhealogics.com> website.

Third, actual knowledge of the prior registration of an identical or confusingly similar mark is a factor supporting bad faith.

Fourth, Respondent registered the domain name through a privacy service creating the presumption that the name was registered and is being used in bad faith.

Fifth, Respondent has a long history of adverse UDRP decisions.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

Respondent has no right to use the HEALOGICS mark as part of the confusingly similar domain name <wwwhealogics.com>.

Respondent has registered and is using the <wwwhealogics.com> domain name in bad faith.

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

Identical and/or Confusingly Similar

Rights or Legitimate Interests

Respondent has no right to use the HEALOGICS mark as part of the confusingly similar domain name <wwwhealogics.com>. Complainant has maintained continuous use of the HEALOGICS mark, including online use, since at least 2012, more than eleven years prior to Respondent's registration of the <wwwhealogics.com> domain name on November 15, 2023. Further, Complainant has never authorized Respondent to use the HEALOGICS mark. See, e.g., Telstra Corp., Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (Feb. 18, 2000) (Respondent had no rights or legitimate interests in domain name in question in part because "the Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to apply for or use any domain name incorporating any of those marks . . . ."); Mass. Med. Soc'y v. Michael Karle, WIPO Case No. D2000-0282 (June 15, 2000) ("Respondent is not a licensee of the Complainant and is not otherwise authorized to use the Complainant's mark.").

Moreover, according to the information provided in the Whois record, Respondent's name is "Carolina Rodrigues/Fundacion Comercio Electronico." This name has nothing in common with the <wwwhealogics.com> domain name. Multiple panels have found that a contention that one has a legitimate interest in a domain name is inherently suspect where the respondent's name sounds nothing like the domain name at issue. See, e.g., Tommy John, Inc. v. Domain Administrator, FA 1912001876247 (Forum Jan. 26, 2020) ("Domain Administrator/Fundacion Privacy Services" name had nothing in common with TOMMY JOHN trademark).

In addition, Respondent is not using the <wwwhealogics.com> domain name in connection with any bona fide offering of goods or services or other legitimate use. A printout of the website to which the <wwwhealogics.com> domain name resolves, redirects the user to click a link to conduct a "security check." There is no legitimate reason for Respondent to be using a confusingly similar domain name for a "security check." See Morgan Stanley v. Foo, FA 1607001682650 (Aug. 11, 2016) (finding that use of morgastanley.com to redirect to users to a website that attempts to install malware was not a legitimate interest); Retail Royalty Co. v. Private Whois aecoupons.net, FA 1203001433844 (April 26, 2012) (finding that use of aecoupons.net to a website that installed software on a user's machine when the user clicked 8 on the site to access "coupons" was not a legitimate interest).

Based on the foregoing, Respondent has no rights or legitimate interests in the <wwwhealogics.com> domain name.

Registration and Use in Bad Faith

Respondent has registered and is using the <wwwhealogics.com> domain name in bad faith.

First, presumably, Respondent has registered and is using the <wwhealogics.com> domain name to trick users to install malware on the user's computer. Use of a domain name confusingly similar to a well-known trademark to trick users into installing malware onto their computers is bad faith registration. See Cardinal Health, Inc. v. Zhangwei, FA 2008001908971 (Sept. 17, 2020) (use of cardinalhealth.co to redirect users to a site that appears to trick users into installing malware on their computers was bad faith registration);

Second, Respondent has engaged in typosquatting, which is evidence of bad faith. Respondent has adopted Complainant's entire HEALOGICS mark as a domain name and then simply added "www" to the front of it and the ".com" TLD to create a domain name that is a common typographical error which consumers would make when trying to reach Complainant's legitimate <healogics.com> website. Respondent is then benefiting from diverting those customers to Respondent's own <wwwhealogics.com< website. The misspelling of a complainant's mark to commercially benefit from the confusing similarity between the misspelling and the complainant's genuine mark shows bad faith. E.g., Morgan Stanley v. Hom, FA 200100187796 (Forum Feb. 9, 2020) (registration and use of morganstlanley.com was common misspelling of MORGAN STANLEY mark and thus constituted typosquatting and evidence of bad faith);

Third, actual knowledge of the prior registration of an identical or confusingly similar mark is a factor supporting bad faith. Barney's Inc. v. BNY Bulletin Bd., WIPO Case No. D2000-0059 (Apr. 2, 2000);

Fourth, Respondent registered the domain names through a privacy service. Registration through a privacy service creates the presumption that the name was registered and is being used in bad faith. Harry Winston, Inc. v. [Redacted]/Winsfon, FA 1804001781418 (Forum May 14, 2018);

Fifth, this Respondent has a long history of adverse UDRP decisions. A search of Forum's past decisions for "Carolina Rodrigues" reveals hundreds of actions before Forum in which this Respondent was the respondent. In fact, this same Respondent received an adverse decision involving another domain containing Complainant's HEALOGICS mark. Healogics, Inc. v. Carolina Rodrigues/Fundacion Comercio Electronico, FA 2306002048644 (ordering transfer of clinicaleducationhealogics.com to complainant). It is well established that "a pattern of registering confusingly similar domain names can evince bad faith registration and use." Enterprise Holdings, Inc. v. Carolina Rodrigues/Fundacion Comercio Electronico, FA 2304002038432 (Forum May 18, 2023) (finding that respondent had been named as respondent in 249 adverse Forum decisions and that such pattern showed bad faith).

Based on the foregoing, Respondent registered the <wwwhealogics.com> domain in bad faith.

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

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated: February 7, 2024