The Complainant is Humana Inc. of Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America (the “U.S.”).
The Respondent is Yusuf Gulsesli of Amasya, Turkey. 2. The Domain Names and Registrar
The disputed domain names and are registered with Melbourne IT Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 9, 2011. On March 9, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 9, 2011, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed amendments to the Complaint on March 17 and 23, 2011.
The Center verified that the Complaint together with the amendment to 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 24, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 13, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 15, 2011.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on April 20, 2011. 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. Factual Background
The Complainant is one of the largest publicly traded health benefits companies in the U.S. offering a diversified portfolio of health insurance products and related services through traditional and consumer-choice plans to employer groups, government-sponsored programs, and individuals. The Complainant's revenues for the year ending September 30, 2010, were approximately USD 25.52 billion. As of September 30, 2010 the Complainant had approximately 10.1 million medical members and 7.0 million specialty members in its medical insurance programs.
The Complainant has used the mark HUMANA since at least 1973 and the mark HUMANAONE since at least 2002. The Complainant currently uses both of these marks in connection with various healthcare and health insurance services. The Complainant owns a number of trademark registrations for HUMANA and HUMANAONE in the U.S. and other countries including U.S. trademark number 1305479 for the word mark HUMANA registered on November 13, 1984 in International Class 42; and U.S. trademark number 2771449 for the word mark HUMANAONE registered on October 7, 2003 in International Class 36.
The Respondent appears to be an individual based in Amasya, Turkey. The disputed domain name was registered on July 1, 2010 and the disputed domain name on July 13, 2010. Both of the disputed domain names point to websites containing sponsored advertising links relating to health insurance including links to competitors of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain names are confusingly similar to trademarks in which it owns rights; that the Respondent has no rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
The Complainant claims that its HUMANA and HUMANAONE trademarks are coined terms and are therefore strong marks deserving of the greatest protection. The Complainant contends that both marks are promoted widely through advertising in various media, co-promotions with other companies and organizations and unsolicited media coverage including radio, television and newspapers. The Complainant asserts that the disputed domain names contain the Complainant’s marks in their entirety and notes that the only difference between the second level of each of the disputed domain names and the Complainant’s marks is the addition of the words “insurance” to the HUMANAONE mark and the words “healthins" to the mark HUMANA. The Complainant contends that these additional terms are descriptive of the service provided by the Complainant.
The Complainant notes that its use of the HUMANA and HUMANAONE trademarks predate the Respondent’s registration of the disputed domain names by 30 years and 8 years respectively. The Complainant states that the Respondent has not used the disputed domain names in connection with a bona fide offering of goods or services but instead for portal sites offering links to the Complainant’s competitors. The Complainant asserts that this is not a legitimate noncommercial or fair use of the disputed domain names. The Complainant states on information and belief that the Respondent does not operate a business under any name consisting of or incorporating “humana” or “humanaone”.
The Complainant submits that the Respondent’s registration and use of the disputed domain names in connection with advertising portal sites constitutes registration and use in bad faith. The Complainant notes that the Respondent must have had actual notice of the Complainant’s rights in its trademarks given that the Complainant is one of the many businesses referenced on the Respondent’s portal sites’ links. The Complainant states that the Respondent nevertheless proceeded to register the disputed domain names and to use links to direct Internet traffic to competitors of the Complainant including Aetna, Anthem, Cigna, Kaiser, Pacificare and others, as well as to many businesses offering related though not identical goods and services. The Complainant asserts on information and belief that the Respondent also benefits by click through commission, arising from the diversion of Internet traffic, as a consequence of the likelihood of confusion which results from the Respondent’s use of the Complainant’s marks in the disputed domain names. The Complainant also submits that the Respondent has disrupted the business of a competitor and states that the term “competitor” should be construed widely and not simply to mean direct commercial competitors. In any event, the Complainant notes that both of the Parties are marketing healthcare services through the Internet and the Respondent may be considered a competitor in that context. Besides registration of the disputed domain names, the Complainant notes that the Respondent has also registered domain names for known trademarks including CARNIVAL, BRITAX, BREVILLE, MAYTAG, and PANASONIC and that the Respondent has thus engaged in a pattern of preventing mark owners from registering corresponding domain names. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain names are identical or confusingly similar to trademarks or service marks in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The Complainant has demonstrated to the satisfaction of the Panel that it has rights in the trademarks HUMANA and HUMANAONE by virtue of the registered trademarks cited in the Complaint including those noted in the Factual Background section above. The disputed domain names are not identical to the Complainant’s marks, although each incorporates the respective mark in its entirety together with, in the case of the disputed domain name , the generic word “health” and the word “ins” (the Panel considers in the absence of any evidence to the contrary that “ins” may be taken as an abbreviation of the generic word “insurance”) and in the case of the disputed domain name the generic word “insurance”.
It is well recognized in previous cases under the Policy that where the Complainant’s trademark is incorporated in its entirety within a domain name, the addition of one or more generic words will generally not distinguish that domain name from the trademark (see, for example, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Kil Inja,WIPO Case No. D2000-1409). The dominant parts of the disputed domain names are the Complainant’s trademarks which, as the Complainant submits, are coined terms and thus highly distinctive. The top level domains “.com” and “.net” are disregarded for the purposes of comparison as is customary in cases under the Policy. In these circumstances, the Panel finds that the disputed domain names are confusingly similar to trademarks in which the Complainant has rights.
Accordingly the first element under the Policy has been established. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The consensus of previous decisions under the Policy is that a complainant may establish this second element by making out a prima facie case not rebutted by the respondent.
The Complainant has asserted that the Respondent is using the disputed domain names to point to portal sites targeting the Complainant’s rights in its trademarks HUMANA and HUMANAONE and containing links to the Complainant’s competitors. The Complainant notes that this cannot be considered as either a bona fide offering of goods or services or a noncommercial or fair use of the disputed domain names. The Complainant has also noted that it believes that the Respondent does not operate a business under any name consisting of or incorporating HUMANA or HUMANAONE. In the Panel’s opinion, the Complainant’s submissions constitute a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names. In particular, the Panel notes that it is well established that the type of use of the disputed domain names in the present case, which in effect trades off the Complainant’s reputation and trademark, offering or linking to competing goods and services, is not bona fide and cannot confer any rights or legitimate interests upon the Respondent.
The Respondent has chosen neither to explain its conduct nor to set out evidence of any rights or legitimate interests in respect of the disputed domain names. In these circumstances, the Panel finds that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain names and that the second element under the Policy has been established. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”.
In light of the Complainant’s submissions and evidence the Panel is satisfied that the Respondent has registered and used the disputed domain names in bad faith. It is clear to the Panel that the Respondent selected and used the disputed domain names with intent to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s trademarks. The use of those trademarks on the Respondent’s websites alongside those of the Complainant’s competitors demonstrates to the Panel’s satisfaction that the Respondent must have had actual notice of the Complainant’s trademarks at the point of registration of the disputed domain names and indeed that the Respondent deliberately intended to target those trademarks as contended by the Complainant. The Panel also finds that the Respondent appears to have engaged in a pattern of conduct whereby it has prevented the owners of various trademarks from reflecting their marks in a corresponding domain name, based upon the comprehensive evidence to this effect provided by the Complainant.
Accordingly, the third element under the Policy has been established. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be transferred to the Complainant.
Andrew D. S. Lothian
Sole Panelist
Dated: April 26, 2011
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