WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Government Employees Health Association, Inc. v. Vazha Mamniashvili Case No. D2010-0334 1. The Parties
The Complainant is Government Employees Health Association, Inc., a non-profit organisation of Independence, Missouri, United States of America, represented by Lathrop & Gage LLP, United States of America.
The Respondent is Vazha Mamniashvili of Tbilisi, Georgia (formerly part of USSR). 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 4, 2010. On March 4, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On March 7, 2010, GoD, Inc. 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” or “UDRP”), 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 March 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 29, 2010. The Respondent sent informal email communication to the Complainant and the Center on March 7 and March 9, 2010. However, no formal Response was submitted.
The Center appointed Philip N. Argy as the sole panelist in this matter on April 6, 2010. The Panel finds that it was properly constituted. 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. 4. Uncontested Factual Background
The Complainant, Government Employees Health Association, Inc. is a comprehensive health insurance plan serving United States federal employees, federal retirees, and their families. The organization began in 1937, and is currently the second-largest national health plan and dental plan for federal employees and retirees, providing coverage to nearly 1 million people worldwide.
The Complainant owns the domain name , which was created on June 11, 1996. The Disputed Domain Name was created on October 15, 2009. The Complainant currently owns several United States federal service mark registrations for GOVERNMENT EMPLOYEES HEALTH ASSOCIATION, GEHA, and GEHA formative marks (collectively the “GEHA” Marks). The Complainant has used the house mark GEHA for nearly 30 years in connection with health and dental insurance plans and is commonly known to the public as “GEHA”. 5. Parties' Contentions A. Complainant
The website to which the Disputed Domain Name resolves uses the title “GEHA Insurance” with the tagline “Enjoy the benefits of GEHA Insurance. GEHA Health and Dental Insurance Plans.” It goes on to state: “Government Employees Health Association – GEHA Insurance offers affordable health care insurance plans for US federal retirees, federal employees and their family members. Each GEHA Insurance health plan has its own exclusive benefits and savings”. The website goes on to provide additional information about “GEHA Insurance” and the plans, coverage and “savings opportunities” it provides. There are then four other links (header and on right hand side of the page) entitled “About”, “GEHA Health Insurance – The Benefits”, “GEHA Insurance” and “Privacy Policy”. There is also a shaded box titled “Insurance Quotes” in the center of the web page. Users are able to select from four different types of insurance: auto, home, health, or life insurance. Upon choosing “health insurance,” users are directed to , which allows customers to input information to request a quote. When a user selects the “auto insurance” tab, he/she is diverted to ; selecting the “home insurance” tab diverts to ; and the “life insurance” tab links to . None of these third party insurance quote providers are affiliated with, sponsored, or endorsed by the Complainant.
The Respondent has sought to capitalize on the Complainant's goodwill by operating a website that appears to have an affiliation or relationship with the Complainant and the insurance services it provides. The Respondent's website uses the Complainant's service mark GEHA in its domain name, uses the GEHA service mark several times on the site, and makes a direct reference to “Government Employees Health Association”. Despite the Respondent's website's statements to the contrary, the Respondent is not, nor has it ever been, associated with the Complainant in any way. The Respondent is not authorized to use the Complainant's name or the GEHA Marks, nor is the Respondent authorized to “sell” or “offer to sell” insurance plans on behalf of the Complainant. Even more alarming is that the Respondent's website is inaccurate. For example, the Complainant does not offer “auto, home, or life insurance” as the “Insurance Quotes” link suggests. Moreover, the Respondent's website directs users to competitive websites featuring insurance plans that the Complainant does not write. The Respondent's website clearly uses the Complainant's name, service marks, and programs to generate interest in the Respondent's site and to sell insurance that the buyer is led to believe is the Complainant's product, which is not the case.
The Respondent's domain name is confusingly similar to the Complainant's GEHA Marks. The Domain Name incorporates the Complainant's registered GEHA service mark in its entirety. The addition of the term “insurance”, which in this case is a generic word for the services the Complainant provides, further adds to the confusing similarity of the Domain Name. Often the addition of a word that is descriptive or generic of the goods or services not only fails to distinguish the domain name from the complainant's mark, but instead supports a finding of confusing similarity.
The Respondent's website uses the GEHA mark several times, makes a direct reference to “Government Employees Health Association” and “GEHA Insurance” and provides information on “GEHA Insurance plans”. The Disputed Domain Name is plainly deceptive and misleading. Internet users who visit this site are highly likely to believe that they are visiting a site affiliated with the Complainant. Further, when users search for “GEHA” on popular search engines such as GOOGLE® or YAHOO!®, these search engine providers offer “search assist” or “suggested search” functions that display several search queries below the “search” field, one of which is “geha insurance”. B. Respondent
Whilst no Response as such was filed, as noted above there were two emails sent by Respondent to the Center. In the first, the Respondent advised the Center that
“I logged in to my godaddy [sic] account to delete that domain but I'm not able, its locked (On Hold - Domain Dispute). Can you please delete it or remove hold so I will be able to remove it?”
and in the second he indicated that
“I'm willing to cancel/delete/transfer this domain from my account. The problem is that because of the domain status (disputed), Godaddy doesn't allow me to delete or transfer it.
I think this would be the best resolution for this case”. 6. Discussion and Findings
The first issue is whether the Panel should proceed in the conventional way to make findings under paragraph 4(a) of the Policy on any or all of the three primary bases on which the Complaint is filed, or whether it should simply order a transfer as suggested by the Respondent, without proceeding to make any such findings and without issuing an opinion on the merits.
In principle, if the former course is taken, it is by no means certain that a complainant would succeed, and if the latter course is taken it is possible, for example, for a pattern of bad faith conduct by a respondent to continue without formal findings that might support invocation of paragraph 4(b)(ii) of the Policy in subsequent cases.
It is clear from the most helpful index published by WIPO at “” that many panels have followed the course sought by the Respondent in this proceeding. Indeed this Panel has itself done so a number of times, such as in Sanofi-aventis and Sanofi-Aventis Deutschland GmbH v. RareNames, WebReg,WIPO Case No. D2007-1676 (“Sanofi”).
One rationale for taking that course, and followed by many panels, is that summarized in Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207, where the learned panel there held inter alia:
“Because Respondent has consented to the relief requested by Complainant, it is not necessary to review the facts supporting the claim. I am left to decide the appropriate procedure to conclude the case in a situation not directly addressed by the Rules. Several provisions provide guidance. Rule 10(a) gives the panel the discretion to conduct the proceeding in such manner as it deems appropriate under the Policy and the Rules. Rule 10(c) requires the Panel to “ensure that the proceeding takes place with due expedition”. Rule 12 permits the Panel to require further statements from the parties. Rule 17 requires the Panel to terminate the proceeding when the parties have agreed to a settlement.
Here, although Respondent has consented to the requested relief, the parties have not agreed to a formal settlement and terminating the proceeding would not affect the parties intent. Under Rules 10 and 12, the Panel appears to have authority to delay the decision and permit the parties time to submit confirmation that they have agreed to a settlement. That procedure, however, would delay this proceeding and impose unnecessary cost on both the parties and WIPO. Under the circumstances, I believe the better course is to enter an order granting the relief requested by the Complainant so that the transfer may occur without further delay.
Accordingly, this Panel finds that the disputed domain name can be transferred to the Complainant without determination of the elements of paragraph 4(a).”
In this case the Respondent suggests that the Disputed Domain Name be transferred to the Complainant. That matches the relief sought by the Complainant. As in the above-cited case, there is nothing before the Panel to indicate that the parties have agreed to any such formal settlement. Terminating the proceeding would plainly not achieve either the parties' intentions or the goals of the Policy. Asking the parties to reach and record a formal agreement would thwart the Policy's objective of saving costs.
In addition to the rationale set out in Williams-Sonoma, Inc. v. EZ-Port above, this Panel considers paragraph 15(a) of the Rules which states that “a Panel shall 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”. It seems to this Panel at least that proceeding to make findings that precluded the Complainant's requested outcome would be perverse in the face of the Respondent's express request to the same effect, the goals and objectives of the Policy, and basic administrative and judicial principles that seek to accommodate parties' intentions unless to do so would be against public policy or some other clearly applicable rule.
The only ‘public policy' type of ground that seems of potential application here, as it did in Sanofi, is that of preserving for the future a complainant's ability to rely on paragraph 4(b)(ii) of the Policy in relation to the Respondent's conduct if the Panel were to make findings against the Respondent in this proceeding which, when combined with similar findings in other proceedings, could support the use of that provision in a subsequent complaint.
As this Panel said in Usborne Publishing Limited v. Texas International Property Associates - NA NA,WIPO Case No. D2007-1913:
If panels simply comply with respondents' surrender when a complaint is filed, and refrain from making factual findings that are open to them which would otherwise be evidence of a pattern, inappropriate “cybersquatting” conduct might be perpetuated. A. Identical or Confusingly Similar
It is beyond doubt that the Complainant owns GEHA trademarks in respect of insurance services. It is equally beyond doubt that the Disputed Domain Name comprises the Complainant's GEHA trademark with “insurance” as a suffix.
Both this Panel and many others have noted that the addition to a trade mark of a word or words describing the services in respect of which the trademark is used by a complainant compounds the confusion rather than alleviating it. It is for that reason the Panel finds the Disputed Domain Name to be confusingly similar to the Complainant's GEHA trademarks. B. Rights or Legitimate Interests
It is plain to the Panel that the Respondent has disclaimed having any further interest in the Disputed Domain Name. He having professed if not asserted no right or legitimate interest in the Disputed Domain Name, the Panel so finds. C. Registered and Used in Bad Faith
The content of the website to which the Disputed Domain Name resolves falsely if not fraudulently invokes the name of the Complainant and its GEHA trademarks in order to divert Internet users to other sites many of which are of tenuous relevance or utility to those looking for the Complainant's website, or, worse still, to competitive products or inferior or other products which falsely appear to have the Complainant's endorsement, approval or affiliation.
Here there is little doubt that the Respondent has engaged in the most flagrant bad faith use of the Disputed Domain Name. The speed with which the Respondent surrendered is hardly evidence of any good faith registration. In the Panel's view the Respondent's conduct is the classic cybersquatting that the Policy was designed to redress.
The Panel formally finds that the Disputed Domain Name was registered and is being 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, be transferred to the Complainant.
Philip N. Argy
Sole Panelist
Dated: April 16, 2010
Full & Egal Universal Law Academy