DECISION

 

Availity, L.L.C. v. Domain Administrator / Fundacion Privacy Services LTD

Claim Number: FA2508002170744

 

PARTIES

Complainant is Availity, L.L.C. ("Complainant"), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD ("Respondent"), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <availtiy.com>, registered with Media Elite Holdings Limited, S.A.

 

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.

 

Petter Rindforth as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 11, 2025; Forum received payment on August 11, 2025.

 

On August 12, 2025, Media Elite Holdings Limited, S.A. confirmed by e-mail to Forum that the <availtiy.com> domain name is registered with Media Elite Holdings Limited, S.A. and that Respondent is the current registrant of the name. Media Elite Holdings Limited, S.A. has verified that Respondent is bound by the Media Elite Holdings Limited, S.A. 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 August 13, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 2, 2025 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@availtiy.com. Also on August 13, 2025, 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 September 3, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Petter Rindforth 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

The Complaint is based on Complainant's AVAILITY trademark. Complainant has used the AVAILITY trademark to identify a wide variety of goods and services since 2002.  Complainant uses the AVAILITY trademark to identify its services in a variety of communications media, including on the www.availity.com website. Such services include provision of a blog with articles about healthcare, insurance and other topics under the AVAILITY trademark.

 

The domain name is confusingly similar to marks in which Complainant has rights, it consists of Complainant's AVAILITY trademark, then simply moving the second "I" from the sixth position to the eighth position and adding the .com top-level domain name ("TLD").

 

Respondent has no right to use the AVAILITY trademark in the confusingly similar domain name <availtiy.com>. Complainant has maintained continuous use of the AVAILITY trademark, including online use, since 2002, and its United States Registration No. 2,667,172 was filed on June 1, 2001, nearly seven years prior to Respondent's registration of the domain <availtiy.com> on March 3, 2009.

 

Complainant has never provided authorization of any kind, which would permit Respondent to use the AVAILITY trademark.

 

Respondent is not using the <availtiy.com> domain name in connection with any bona fide offering of goods or services or other legitimate use. Instead, Respondent is using the domain name for the purpose of redirecting the user to various sites that purport to encourage the user to install software or an extension to software.

 

The domain name has been registered and used in bad faith, as i) Respondent has registered and is using the <availtiy.com> domain name to redirect to websites that are used for the purpose of installing malware on the user's computer, ii) Respondent has engaged in typosquatting, which, in and of itself, is evidence of bad faith, iii)  it is well established that actual knowledge of the prior registration of an identical or confusingly similar mark is a factor supporting bad faith. Here, Respondent would not have been able to register <availtiy.com> as a domain name without having actual knowledge of the AVAILITY trademark. That Respondent has included an article about Complainant on Respondent's website further shows that Respondent clearly had knowledge of the AVAILITY mark before using such mark in <availtiy.com> domain, iv) Respondent registered the domain name through a privacy service. It is well established that registration through a privacy service creates the presumption that the name was registered and is being used in bad faith, and bad faith can be found based on this ground alone, v) registration and use of the domain name into installing malware is bad faith registration and use.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner several AVAILITY trademarks, registered with the United States Patent and Trademark Office ("USPTO"), including but not limited to:

 

-       No. 2,667,172 AVAILITY (word), registered on December 24, 2002 for services in Intl Class 42

-       No. 3,671,801 AVAILITY (word), applied for on July 21, 2008, and registered on August 26, 2009 for services in Intl Class 42

 

The disputed domain name <availtiy.com> was registered on March 20, 2009.

 

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 Complainant asserts rights in the AVAILITY trademark based upon the registration with the USPTO (e.g., Reg. No. 2,667,172 registered December 24, 2002). Registration of a trademark with the USPTO is a valid showing of rights in a trademark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i)."). Since Complainant provides evidence of registration of the AVAILITY trademark with the USPTO, the Panel find that the Complainant has rights in the trademark under Policy 4(a)(i).

 

Complainant argues that Respondent's <availtiy.com> domain name is are identical or confusingly similar to Complainant's AVAILITY trademark as it contain the AVAILITY trademark in its entirety, with a small misspelling and the ".com" gTLD. Minor misspellings of a trademark and adding a gTLD generally fails to sufficiently distinguish a disputed domain name from a trademark per Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA trademark and merely adds the gTLD '.com' and the letter 'l' to create a common misspelling of the word 'bank'). Therefore, the Panel find that the disputed domain name is confusingly similar to Complainant's trademark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."); see also Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).

 

The Complainant contends that Respondent lacks rights or legitimate interests in the <availtiy.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the AVAILITY trademark. WHOIS information may be used to determine whether a respondent is commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant's trademark may indicate that the respondent is not commonly known by the disputed 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 the disputed domain name lists the registrant as "Domain Administrator / Fundacion Privacy Services LTD" and there is no other evidence to suggest that Respondent was authorized to use the AVAILITY trademark. Therefore, the Panel find that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant contends Respondent lacks rights or legitimate interests in the <availtiy.com> domain name since Respondent uses the domain name for the purpose of redirecting the user to various sites that purport to encourage the user to install software or an extension to software.

 

Where a respondent uses a domain name to download/install malicious software, Panels have found that respondent lacks rights or legitimate interests, a finding that has in fact been done in a number of previous cases with the same respondent as in the present case. See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) ("Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii)."). 

 

Based on the evidence provided by the Complainant, the Panel find that Respondent lacks rights or legitimate interests per Policy ¶ 4(c)(i) and 4(c)(iii).

 

Registration and Use in Bad Faith

Complainant contends that Respondent registered the <availtiy.com> domain name in bad faith since Respondent uses the domain name to redirecting users to various sites that purport to encourage the user to install software or an extension to software. This, and similar activities have been found to be bad faith registrations in previous cases. See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) ("The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)."). Therefore, the Panel find that Respondent lacks rights or legitimate interests per Policy ¶ 4(a)(iii).

 

Complainant also argues that Respondent engaged in typosquatting in bad faith. Typosquatting may act as independent evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA 1585022 (Forum Nov. 18, 2014) (finding that the respondent's <unerarmour.com> domain name constitutes typosquatting of the complainant's UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Complainant argues that Respondent's "simply moving the second "I" from the sixth position to the eighth position" constitutes typosquatting. The Panel agrees, and find bad faith pursuant to Policy ¶ 4(a)(iii).

 

Complainant argues that Respondent had knowledge of Complainant's rights in the AVAILITY trademark at the time of registering the <availtiy.com> domain name. The Panel disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See 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."). However, the Panel choose to determine whether Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) ("Complainant contends that Respondent's knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant's mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii)."). To support this assertion, Complainant points to its trademark registrations as well as its commercial presence and reputation, as well as the fact that Respondent has included an article about Complainant on Respondent's website.

 

As such, the Panel find it likely that Respondent did have actual knowledge of Complainant's right in the trademark, and find 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 <availtiy.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Petter Rindforth, Panelist

Dated: September 17, 2025