The Complainant is Alliance Healthcare Services Inc. of Newport Beach, California, United States of America, represented by Manatt, Phelps & Phillips, LLP, United States of America.
The Respondent is [Name Redacted], United States of America / Whois Agent, Whoisprivacy Protection Service Inc. of Kirkland, Washington, United States of America. For reasons that will become apparent in Section 6 below, the Panel has decided that no purpose will be served by including the name of the referenced individual in this Decision and has therefore redacted the name from the caption and body of this Decision. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 19, 2015. On September 21, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 21, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 22, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 27, 2015.
The Center verified that the Complaint together with the amended Complain 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 2, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 23, 2015.
The Center appointed Richard G. Lyon as the sole panelist in this matter on October 28, 2015. The Panel finds that it was properly constituted. The Panel has submitted his 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 Alliance provides advanced outpatient diagnostic and radiation therapy medical services, primarily to hospitals and other healthcare providers. The Complainant holds a trademark for ALLIANCE HEALTHCARE SERVICES registered on the principal register of the United States Patent & Trademark Office (USPTO) in February 2010. Its principal website is .
The disputed domain name was created on or about February 15, 2015. An Internet user who enters the disputed domain name into his browser receives an error message: "404. That's an error. The requested URL / was not found on this server. That's all we [the hosting provider] know."
On April 29, 2015, the Complainant filed a complaint in the United States District Court for the Central District of California against unnamed defendants,1 alleging causes of action under U.S. federal and California state law for trademark infringement, false designation of origin, the California comprehensive computer data access and fraud act, knowing and unauthorized credible impersonation of the Complainant's employees for fraudulent purposes, and misappropriation of public likeness. The factual basis for these charges, at least two of which are based upon allegedly criminal conduct, are similar to those summarized in Section 5-A below. The Complainant voluntarily dismissed this complaint without prejudice in August 2015. 2 As noted above the Complainant filed the Complaint in this proceeding on September 19, 2015. 5. Parties' Contentions A. Complainant
The Complainant's contentions in this proceeding are better understood if the Panel first summarizes the gist of the Complainant's factual assertions. Quotations in this summary are from the Amended Complaint.
"[The] Respondent has been conducting a large scale fraudulent job-posting and email scheme to steal money and personally identifiable information ('PII') from individuals by convincing them that they are applying to a work-from-home job with [the Complainant]". The Respondent has used the disputed Domain Name to create email addresses that, because of the similarity of the disputed domain name to the Complainant's own principal website, appear to be email addresses of the Complainant or its employees. To add further apparent verisimilitude the Respondent used names of actual employees of the Complainant in these phony email addresses. One such employee was [Name redacted], named by the Registrar as the registrant of the disputed domain name and one of the Respondents. The Complainant asserts that [Name redacted] is not the true registrant and that it has not been able to ascertain who has been perpetrating this fraud, hence the 'John Doe' defendants in the complaint in federal court.
In addition the 'Respondent has posted fabricated advertisements for work-from-home jobs with [the Complainant] on various third-party job posting forums and websites. Once a potential job applicant contacts Respondent, Respondent immediately initiates fraudulent communications' via various means of communication that (again because of the similarity of the disputed domain name to the Complainant's website and the use of the names of actual employees of the Complainant) appear to come from the Complainant. The Respondent allegedly then conducts interviews with potential job applicants for the purpose of identity theft – 'to solicit the applicants' PII and bank information.'"
The Complainant submits no evidence to support any of these factual allegations.
Based upon these allegations, the Complainant contends as follows under each element of paragraph 4(a) of the Policy:
1. The dominant feature of the disputed domain name differs from the Complainant's USPTO-registered mark by using the singular ("service") instead of the plural ("services") and the addition of the geographic designation "us." That does not obviate confusing similarity under well-established Policy precedent.
2. The Respondent has never been commonly known by the disputed domain name and has never been authorized by the Complainant to use its mark. Use of the disputed domain name for a fraudulent job-posting and identity theft scheme does not confer a right or legitimate interest.
3. Similarly, use of the disputed domain name to commit fraud is obvious bad faith. The Respondent registered the disputed domain name to disrupt the Complainant's business and fraudulently to imply that the Complainant has in some way authorized or sponsored the job postings. The Respondent's conduct thus falls within the two examples of evidence of bad faith set out in paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. Further evidence of bad faith includes using false registration information, registration using a privacy service, and active concealment of its identity. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Panel on its own initiative raises two separate procedural issues. A. Identity of the Respondent.
Paragraph 1 of the Rules defines the Respondent as "the holder of a domain-name registration against which a complaint is initiated." The Complainant duly named the privacy service, Respondent Whois Agent, Whoisprivacy Protection Service Inc., as the Respondent in the Complaint and, at the Center's suggestion (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.9), added Respondent [Name Redacted] in the Amended Complaint. The Complainant goes on to assert without evidence that [Name redacted], is one of its current employees and is not the true registrant.
Clearly this Panel lacks the resources, not to mention the jurisdiction, to investigate the disputed domain name owner's true identity. To a great extent, however, determining this is unnecessary, for an order of transfer or cancellation, should the Complainant prevail, directs the Registrar, not the Respondent, to take action in respect to the disputed domain name. A denial simply preserves the status quo ante, similarly requiring no action on either party's part. This Panel decides to leave it at that, as further action against the Respondent's alleged misconduct will require the Complainant to discover the perpetrator and pursue its claims in a forum in which the means to do so exist. B. Is this Dispute Outside the Scope of the Policy?
The summary of the Complainant's grievance with the Respondent, whoever he (or she or it) may be, demonstrates beyond any doubt that complete resolution will require proceedings in a national court. That fact raises a question of whether the Panel should leave resolution of all issues, including those surrounding the disputed domain name, to the courts rather than opining on a small piece of a far larger puzzle. As there are no other legal proceedings currently pending between the parties (the Complainant having withdrawn its court complaint), paragraph 18 of the Rules is unavailable to the Panel. Nevertheless panels have on similar occasions declined to proceed to a decision on the merits when many of the same issues are likely to be decided in court, when one party seeks to use a UDRP proceeding to gain an advantage in court or to harass, when a decision by a UDRP panel requires determination of a central issue in pending or likely court proceedings, or when the panel must weigh in on an issue of law or fact better decided by another tribunal. Given the gravity of the Complainant's charges this proceeding falls within the latter two of these examples.
Whether to proceed to decision involves the Panel's discretion, properly exercised within the principles of decision laid down by other panels over the fifteen years of UDRP cases. See WIPO Overview 2.0, paragraphs 4.1, 4.14. The determinative criteria are discussed at some length in The Chancellor, Masters and Scholars of the University of Cambridge v. Kirkland Holdings LLC, WIPO Case No. D2015-1278, and Yellowstone Mountain Club LLC v. Offshore Limited D and PCI, WIPO Case No. D2013-0097. Among them are: does a party in the UDRP ask for resolution of any of central matters in pending or likely court proceedings; are there other pending proceedings between the parties; will panel findings turn upon an issue disputed in litigation; does the UDRP dispute seek anything beyond transfer of the disputed domain name; what will the impact of a UDRP decision be on the merits of court proceedings; is the evidence produced for each case likely to be different or the same?
Applying these criteria to this proceeding the Panel determines to deny the Complaint as raising issues beyond the scope of the Policy and that are better determined in the national courts. First, the Complaint turns on charges of fraud that may require ascertaining and evaluating alleged criminal conduct. In a proceeding in which discovery, confrontation, and cross-examination are almost never permitted several issues may be impossible to determine without considerable assumptions or inferences made on a necessarily incomplete record. While allegations of fraud or other criminal conduct do not automatically place the Complaint outside the Policy, in this case the Complainant has made the Panel's evaluation infinitely more difficult by providing no evidence to support these serious charges.3 On the present evidentiary record bad faith has not been proven and the Panel hesitates to sustain serious charges against even an unknown person without a shred of proof. The Panel believes that a national court is far better suited to resolution through the evidentiary development and refinement of confrontation and trial than assessing an unproven UDRP complaint. Second, the recruitment scheme, not the disputed domain name, is the real issue between the Complainant and the individual behind the alleged fraudulent scheme. A transfer of the disputed domain name, the only remedy a UDRP Panel may give, may not and likely will not end the job posting arrangement complained of; its perpetrator may simply make use of another domain name and other accouterments to keep it going. Third, while a domain name is involved and allegedly misused, this is not a typical case of cybersquatting – taking advantage of the trademark value of the disputed domain name to mislead Internet users. Finally, and probably most importantly, the dearth of evidence in the Complaint hampers a proper resolution in this forum.
The resulting denial does not leave the Complainant without a remedy, as it may refile its court complaint with an additional cause of action or proceed separately against the actual owner of the disputed domain name. As its first complaint illustrates United States federal procedure permits a filing against an unknown defendant. It also allows means under court aegis to discover who the alleged malefactor is. 7. Decision
For the foregoing reasons, the Complaint is denied.
Richard G. Lyon
Sole Panelist
Date: November 20, 2015
1 See discussion of the Respondent's identity in section 5. A infra.
2 A plaintiff in a case filed in U. S. federal court may voluntarily dismiss its complaint without prejudice at any time before the defendant files a motion or responsive pleading, see Federal Rule of Civil Procedure 41(a)(1)(i). The Panel points this out to note that such action does not require the consent of the defendant.
3 Such evidence, if it exists, should be readily available to the Complainant. Compare the proof offered to support comparable allegations in Terex Corporation v. Williams Sid, Partners Associate, WIPO Case No. D2014-1742.
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