UnitedHealth Group Incorporated v. SZK.com c/o Michele Dinoia
Claim Number: FA0605000714798
Complainant is UnitedHealth Group Incorporated (“Complainant”), represented by Carrie L. Johnson, of Fulbright & Jaworski, 2100 IDS Center, 80 S. Eighth Street, Minneapolis, MN 55402. Respondent is SZK.com c/o Michele Dinoia (“Respondent”), Via Trilussa 11, Pineto, TE ITALY 64025.
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <uhconline.com>, registered with Dotster.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 24, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 25, 2006.
On May 31, 2006, Dotster confirmed by e-mail to the National Arbitration Forum that the <uhconline.com> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 1, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 21, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@uhconline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <uhconline.com> domain name is confusingly similar to Complainant’s MYUHC.COM mark.
2. Respondent does not have any rights or legitimate interests in the <uhconline.com> domain name.
3. Respondent registered and used the <uhconline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, UnitedHealth Group Incorporated, is a company specializing in the health and well-being industry. Complainant’s largest division, health insurance plans, operates under the name UnitedHealthCare. Complainant holds several marks with the United States Patent and Trademark Office (“USPTO”), including one for its MYUHC.COM mark (Reg. No. 2,645,558 issued November 5, 2002), which it uses for its insurance-related website.
Respondent registered the <uhconline.com> domain name on May 12, 2003. Respondent’s disputed domain name resolves to a website featuring links to third-party websites that offer goods and services, some of which are in direct competition with Complainant. Some of these competing links display Complainant’s name and/or trademarks.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel finds that Complainant’s federal trademark
registration with the USPTO sufficiently establishes Complainant’s rights in
the MYUHC.COM mark. See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004)
(“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's
rights in the mark.”).
Respondent’s <uhconline.com> domain name is confusingly similar to Complainant’s MYUHC.COM mark pursuant to Policy ¶ 4(a)(i) as it contains the dominant portion of Complainant’s mark and adds the generic term “online.” See Maple Leaf Sports & Entm’t Ltd. v. Toronto Maple Leafs!, D2000-1510 (WIPO Jan. 24, 2001) (finding that the domain name <leafs.org> is confusingly similar to the complainant’s marks, where the complainant holds many trademarks that contain the term “LEAFS”); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to the complainant’s BROADCOM mark).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant initially must establish that Respondent lacks any rights or legitimate interests with respect to the <uhconline.com> domain name. However, once Complainant demonstrates a prima facie case, the burden of proof shifts, and Respondent must prove that it has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) ( “Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Complainant asserts that Respondent is not authorized to use
Complainant’s MYUHC.COM mark, and that Respondent is not associated with
Complainant in any way. Respondent’s
WHOIS information also does not suggest that Respondent is commonly known by
the disputed domain name and there is no evidence in the record to suggest that
Respondent is or has ever been known by the disputed domain name. In
Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14,
2000), the panel found that no rights or legitimate interests existed where the
respondent was not commonly known by the mark and never applied for a license
or permission from the complainant to use the trademarked name. See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”). Thus,
the Panel finds that Respondent is not commonly known by the disputed domain
name under Policy ¶ 4(c)(ii).
The evidence on record indicates that Respondent is using the disputed domain name to operate a website which displays links to third-party websites that offer goods and services, some of which are in direct competition with Complainant. Furthermore, Respondent is also using Complainant’s name on the website that resolves from the disputed domain name to advertise links for businesses not associated with Complainant. Consequently, the Panel finds that Respondent’s use of the disputed domain name does not constitute 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). See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has alleged that Respondent acted in bad faith
by registering and using the disputed domain name. Based on the uncontested evidence on record, the Panel finds that
the Respondent is using the <uhconline.com>
domain name to redirect Internet users to a website that features links to
competing third-party websites. The
Panel finds that such use constitutes disruption and is evidence of bad faith
registration and use under Policy ¶ 4(b)(iii).
See Lambros
v. Brown, FA 198963 (Nat. Arb. Forum Nov.
19, 2003) (finding that the respondent registered a domain name primarily to
disrupt its competitor when it sold similar goods as those offered by the
complainant and “even included Complainant's personal name on the website,
leaving Internet users with the assumption that it was Complainant's business
they were doing business with”); see also
Puckett, Individually v.
Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent had
diverted business from the complainant to a competitor’s website in violation
of Policy ¶ 4(b)(iii)).
Additionally, based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to a website featuring competing third-party links. Furthermore, Respondent’s disputed domain name is capable of creating confusion as to Complainant’s affiliation with the <uhconline.com> domain name and resulting website. In Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), the panel found that the respondent’s use of the <mailonsunday.com> domain name was evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to the complainant's competitors and the respondent presumably commercially benefited from the misleading domain name by receiving click-through-fees. See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”)
The Panel finds that Policy ¶ 4(a)(iii) has been
satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <uhconline.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 7, 2006
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