DECISION

 

Communicare Health Services v. Simeon Sanders

Claim Number: FA2409002116665

 

PARTIES

Complainant is Communicare Health Services ("Complainant"), represented by Benjamin W. Janke of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Louisiana, USA. Respondent is Simeon Sanders ("Respondent"), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chss-corp.com>, registered with Squarespace Domains II 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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 20, 2024; Forum received payment on September 20, 2024.

 

On September 23, 2024, Squarespace Domains II LLC confirmed by e-mail to Forum that the <chss-corp.com> domain name is registered with Squarespace Domains II LLC and that Respondent is the current registrant of the name. Squarespace Domains II LLC has verified that Respondent is bound by the Squarespace Domains II 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 September 24, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@chss-corp.com. Also on September 24, 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 October 16, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, 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 name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

i) Complainant is a family-owned company that has specialized in providing quality, patient- centered care for more than 40 years. Complainant is the owner of U.S. Trademark Registration No. 3,157,221 for the mark COMMUNICARE HEALTH SERVICES & Design. The above-referenced trademark registrations are owned by Health Care Facility Management, LLC, which is among the entities of which Complainant's organization is comprised. Complainant is also the owner of common law rights in and to the mark CHS – the abbreviated form of COMMUNICARE HEALTH SERVICES, in connection with the foregoing services. Complainant has used each of these marks since at least as early as September of 1985. The disputed domain name is confusingly similar to Complainant's "CHS" mark as it merely adds the letter "s" and the ".com" gTLD.

 

ii) Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the CHS mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services. Respondent has used the disputed domain name in connection with an email phishing and fraud scheme targeting Complainant's customers.

 

iii) Respondent registered and uses the disputed domain name in bad faith. Respondent is using the disputed domain name to impersonate an employee of Complainant, including by using the employee's actual name and other identifying information, to request payments. Respondent had actual knowledge of Complainant's rights in the CHS mark prior to registering the disputed domain name. Respondent used a privacy service to register the disputed domain name in order to conceal its identity and used false or inaccurate contact information.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on September 8, 2024.

 

2. Complainant is the owner of U.S. Trademark Registration No. 3,157,221 for the mark COMMUNICARE HEALTH SERVICES & Design.

 

3. Complainant has established common law rights in the CHS mark dating back to 1985.

 

4. Respondent created an email address impersonating an employee of Complainant and sent emails to one of Complainant's customers, requesting payment of allegedly outstanding invoices by attaching actual invoices that display the name and address of one of Complainant's healthcare facilities.

 

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 common law rights in the CHS mark dating back to 1985. The Panel notes that to establish unregistered or common law trademark rights for purposes of the Policy, Complainant must show that its mark has become a distinctive identifier that consumers associate with Complainant's goods and/or services. Complainant contends that it has continuously used the CHS mark, which serves as an abbreviation for its federally registered mark COMMUNICARE HEALTH SERVICES (U.S. Registration No. 3,157,221), both independently and in combination with other words and/or designs, in connection with its services since at least as early as 1985. As a result of Complainant's use of the CHS marks for more than 38 years, the CHS marks are well-known in the health care industry and beyond as a signifier of Complainant's services. Complainant has also owned the domain name <chs-corp.com> since as early as 1997, which it uses to facilitate communication related to its health care operations as its email domain. Over the last three decades, Complainant has achieved significant success under the CHS marks, becoming one of the nation's largest providers of post-acute care. Complainant currently operates more than 130 facilities across six states and employs over 18,000 team members. Due to Complainant's long-standing use of the CHS marks, the growth and success achieved under the CHS marks, and the substantial time, money, and effort Complainant has invested in promoting its services under the CHS marks, the CHS marks have become, through favorable public acceptance and recognition, a valuable asset to Complainant as a symbol of its goodwill and the quality of its services, rightfully belonging to Complainant. The Panel therefore finds that Complainant has attained common law rights in the CHS mark dating back to 1985 through widespread and continuous use of the mark, as evidenced by Complainant's exhibits.

 

Complainant argues that the disputed domain name <chss-corp.com> is confusingly similar to its CHS mark, as it merely adds the letter "s" and the ".com" gTLD. The addition of a letter and a gTLD does not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See LodgeWorks Partners, L.P. v. Isaac Goldstein / POSTE RESTANTE, FA 1717300 (Forum Apr. 5, 2017) ("The Panel agrees; Respondent's <archerhotels.com> is confusingly similar to complainant's ARCHER HOTEL mark."). The Panel notes that the disputed domain name adds the letter "s," a hyphen, and the generic term "corp" along with the ".com" gTLD. The Panel further notes that the disputed domain name merely adds the letter "s" to Complainant's domain name <chs-corp.com>. 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 must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Section 2.1, WIPO Jurisprudential Overview 3.0 ("Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.").

 

Complainant argues that Respondent has no rights or legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use Complainant's mark, and Respondent is not affiliated with Complainant. Relevant information, such as WHOIS information, can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The Panel notes that the WHOIS data lists "Simeon Sanders" as the registrant, and there is no evidence in the record to suggest Respondent was authorized to use the mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant further argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use, as Respondent uses the disputed domain name to send phishing emails impersonating Complainant's employee. Using a disputed domain name to pass off as a complainant's employee for the purpose of furthering a phishing campaign may not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) ("Respondent uses the at-issue domain name to pose as Complainant's CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant's ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)").

 

Complainant provides a representative email sent to Complainant's customers from Respondent's disputed domain name, requesting payment of an allegedly pending invoice. The Panel notes that Respondent created an email address impersonating an employee of Complainant and sent emails to one of Complainant's customers, requesting payment of allegedly outstanding invoices by attaching actual invoices that display the name and address of one of Complainant's healthcare facilities. The Panel finds that Respondent's activities are illegal and malicious, and thus fail to constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant contends Respondent registered and uses the disputed domain name in bad faith as Respondent registered the disputed domain name to pass off as Complainant's employee and send phishing emails for Respondent's financial gain. Registration of a confusingly similar domain name with the intent to disrupt business by furthering an email phishing campaign can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). The Panel recalls that Complainant provides a representative email from the disputed domain name impersonating Complainant's employee and requesting payment from Complainant's customer. The Panel finds that by using the disputed domain name, Respondent has intentionally attempted to create a likelihood of confusion with Complainant's CHS marks and to deceive others regarding the source, sponsorship, affiliation, or endorsement of Respondent's email communications, aiming to collect fraudulent and unowed payments from Complainant's customers. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).

 

Complainant further argues Respondent registered the disputed  domain name with actual knowledge of Complainant's rights in the CHS mark. Complainant contends that Respondent's use of the CHS mark to create an email impersonating Complainant's employee demonstrates Respondent's actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name. Use of a mark to confuse users where a respondent impersonates a complainant can demonstrate actual knowledge of a complainant's rights in a mark at registration and show bad faith per Policy ¶ 4(a)(iii). 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."). The Panel also notes that the CHS mark has been used in commerce since at least as early as 1985 in the U.S.. Complainant has spent significant time, money and resources promoting its CHS mark and, as a result, consumers have come to associate the CHS mark exclusively with Complainant and its high-quality services. The Panel infers, due to the notoriety of Complainant's mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant's rights in the CHS mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith 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 <chss-corp.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: October 16, 2024