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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Western Health Advantage v. Domain Drop S.A.

Case No. D2007-1111

 

1. The Parties

The Complainant is Western Health Advantage, Sacramento, California, United States of America, represented by Lord, Bissell & Brook, United States of America.

The Respondent is Domain Drop S.A., Charlestown, West Indies, Saint Kitts and Nevis.

 

2. The Domain Name and Registrar

The disputed domain name <westernhealthadvantage.org> is registered with DomainDoorman, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2007. On July 30, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On August 6, 2007, DomainDoorman, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 6, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26,  2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2007.

The Center appointed J. Christopher Thomas, Q.C. as the sole panelist in this matter on September 4, 2007. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Panel finds that it was properly constituted. The decision due date was extended to September 24, 2007.

 

4. Factual Background

The Complainant is a full-service, not-for-profit health care plan operating in northern California, United States of America. As a licensed Health Maintenance Organization (“HMO”), it insures approximately 87,000 individuals (known as “members”) with comprehensive medical benefits provided primarily through employers.  It also insures some 12,000 persons through a federal program known as Medicaid, and 1,000 individuals through a federal program for seniors, known as Medicare.  The Complainant has annual revenues of approximately US $200 million, 90% of which is paid to health care providers for providing services to the Complainant’s insured members.

The Complainant’s service mark WESTERN HEALTH ADVANTAGE” is registered on the United States Patent and Trademark Organization’s Principal Register under Registration No. 2,173,537, effective July 14, 1998. The mark is registered in Class 42 for health care in the nature of a Health Maintenance Organization (“HMO”). The Complainant’s first use in commerce of the mark was May 1, 1997. A copy of the USPTO registration was attached to the Complaint as Annex 3.

 

5. Parties’ Contentions

A. Complainant

The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

(Policy, paragraph 4(a)(i), Rules, paragraphs 3(b)(viii), (b)(ix)(1))

The Complainant adverted to the foregoing facts and observed that it also uses the Internet as part of its business, featuring a website accessible at “www.westernhealth.com”. The home page of the Complainant’s site was attached to the Complaint as Annex 4. Due to the fact that the disputed domain name is identical to Complainant’s registered mark, WESTERN HEALTH ADVANTAGE, in the Complainant’s view, paragraph 4(a)(i) of the Policy is fulfilled.

B The Respondent has no rights or legitimate interests in respect of the domain name. (Policy, paragraph 4(a)(ii), Rules, paragraph 3(b)(ix)(2))

It was contended further that the Respondent has no rights or legitimate interests in the domain name within the meaning of paragraph 4(c) of the Policy. The Complainant has never authorized the Respondent to register or use the domain name nor to use the Complainant’s mark in any fashion, and the Complainant is not affiliated with the Respondent in any respect. Nor is there any evidence that the Respondent has been commonly known by the domain name.

The Complainant noted further that there is no evidence that the Respondent, who registered the domain name only on June 19, 2006 (Annex 2 of the Complaint), has made any use of, or demonstrable preparations to use, the name in connection with a bona fide offering of goods or services. Rather, referring to Annex 5 of the Complaint, the Complainant asserted that the Respondent has created an “industry-specific, portal-type website at which links to health-related goods and services, unrelated to and unaffiliated with” the Complainant’s services, are provided. Among the links at the Respondent’s “home page” are live links that direct the user to sites offering services in competition with those offered by the Complainant. At a minimum, the Respondent’s use of the domain name in this manner engenders initial interest confusion.

In the Complainant’s view, such use of its mark in the disputed domain name cannot be bona fide. It pointed out that there are many prior decisions under the Policy holding that the unauthorized appropriation of another’s mark in one’s domain name and the apparent commercial use of the corresponding website do not confer rights or legitimate interests upon the owner of such a domain name. Accordingly, the Respondent has no rights or legitimate interests in the domain name.

C. The domain name was registered and is being used in bad faith.

(Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3))

Finally, the Complainant asserted that the domain name in dispute was registered and is being used in bad faith within the meaning of Policy paragraph 4(a)(iii).

In this respect, it is contended that the Respondent plainly had the Complainant’s mark in mind when registering the domain name. While the words “western,” “health,” and “advantage,” taken separately, are common English words, in the combination at issue here, they refer to the Complainant and to its health care services. They are identical to the Complainant’s registered mark. The Respondent could not plausibly deny knowledge of the Complainant’s mark, since the Respondent’s own website features health-related links.

The Complainant noted that many panels applying the Policy have inferred that a website such as that maintained by the Respondent derives pay-per-click revenues from links to other businesses and that the bad faith is aggravated where the links would lead the Internet user to the website of a mark owner’s competitor.

It is reasonable to conclude here that the Respondent is intentionally seeking to attract, for commercial gain, Internet users to the site to which the domain name resolves, thereby by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the domain name, in violation of paragraph 4(b)(iv) of the Policy.

Moreover, it was asserted that the Respondent is a “serial cybersquatter” within the meaning of Policy paragraph 4(b)(ii), based on its registration of a domain name identical to the Complainant’s mark, which thereby prevents the Complainant from using that domain name. This particular Respondent has previously been found to be acting in bad faith under the Policy, in particular, in Crйdit Industriel et Commercial S.A. v. Domain Drop S.A., WIPO Case No. D2007-0532 (June 5, 2007) (offending domain name registered June 19, 2006, the same day as the Respondent registered the domain name in the instant case; the panel finds the Respondent to be a serial offender using its name Domain Drop S.A. or an alias); Intensa Sanpaolo S.p.A. v. Domain Drop S.A., WIPO Case No. D2007-0273 (May 21, 2007) (the Respondent’s portal-type site similar to the offending website operated by the Respondent in the instant case; the panel finds Domain Drop S.A. to be a serial cybersquatter); PREPADOM v. Domain Drop S.A., WIPO Case No. D2006-0917 (October 9, 2006); Kiloutou v. Domain Drop SA, WIPO Case No. D2006-1105 (October 20, 2006); Pelikan Vertriebs Gesellschaft mbH & Co. KG v. Domain Drop S.A., WIPO Case No. D2007-0306 (May 11, 2007); Veolia Entertainment v. Domain Drop S.A., WIPO Case No. D2006-1029 (October 30, 2006).

There are numerous other cases in which the Respondent or one of its aliases was held in bad faith under the Policy. Hence, the Respondent is engaged in a pattern of preclusive and abusive domain name registrations within the meaning of Policy paragraph 4(b)(ii).

Accordingly, the Respondent has registered and is using the Domain Name in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In order for the Panel to decide to grant the remedy requested by a complainant under the Policy, it is necessary that the Complainant prove, as required by paragraph 4(a) of the Policy, in respect of the contested domain name, that:

(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

In the present case, the Panel is of the view that the record contains abundant evidence of each of the three requisite elements.

A. Identical or Confusingly Similar

First, the Complainant claims and the Panel has verified to its satisfaction that the Complainant is the owner of the WESTERN HEALTH ADVANTAGE mark in the United States of America.

The domain name in dispute, <westernhealthadvantage.org> is identical to the Complainant’s trade mark. The Complainant has plainly fulfilled the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Second, the Complainant must prove that the Respondent has no rights or legitimate interests in respect of the domain name.

The Complainant has proven this. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The Respondent has no apparent connection with the Complainant, nor has it been licensed or authorized by it to use the disputed domain name.

The disputed domain name is evidently not the Respondent’s name, nor is there any evidence that the Respondent is commonly known by that name.

Nor is the Respondent making a legitimate non-commercial or fair use of the disputed domain name.

The Panel agrees with the Complainant therefore that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Third, it must be shown that the domain name at issue has been registered and is being used in bad faith. The Respondent’s domain name serves to divert users to a website which contains sponsored links. The Respondent has misled consumers by diverting Internet traffic away from the Complainant’s website to its own.

In the circumstances, the Panel has no doubt whatsoever in concluding that the domain name was registered and used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <westernhealthadvantage.org> be transferred to the Complainant.

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J. Christopher Thomas, Q.C.
Sole Panelist

Dated: September 24, 2007