Complainant is CareSync, Inc. of Wesley Chapel, Florida, United States of America, represented by Thomas & LoCicero PL, United States of America.
Respondent is WhoisGuard protected, WhoisGuard, Inc. of Panama / Jkemp H, Jordan Kemple of Pittsburgh, Pennsylvania, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2016. On May 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 20, 2016, 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 Complainant on May 23, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 24, 2016.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 26, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 15, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 16, 2016.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on June 21, 2016. 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
Complainant claims common law trademark rights in the CARESYNC mark. Complainant first used the CARESYNC mark in commerce on or about April 26, 2013 to identify web services and apps that permit individuals to carry and manage their complete healthcare records, manage appointments, track health issues, use reminder and tracker features and utilize other personal healthcare management tools. CareSync has members in all 50 US States and Puerto Rico. It also has physician clients in over 30 states to whom, among other things, it provides services related to comprehensive patient care plans, HIPPAA-compliant patent enrollment processes, acces to real-time healthcare data, a chronic care revenue management services. Complainant uses its CARESYNC mark on its Internet homepage, through mobile apps and through social media.
Complainant’s domain name was registered on May 4, 2012 and has been in continuous use as Complainant’s official company homepage since approximately the fall of 2012. Mobile apps bearing the CARESYNC mark were launched for Apple iOS and for the Android market in April 2013 and August 2013 respectively. In addition, Complainant maintains multiple social media pages that bear the CARESYNC mark. These include an official Facebook page, a Twitter account and a LinkedIn page.
Complainant promotes the CARESYNC mark to healthcare providers through Google Ads, Bing, Twitter, LinkedIn, Facebook and AdRoll. Complainant also uses its CARESYNC mark in print/online advertising campaigns with the American Academy of Family Physicians and through third party distributors. Complainant also uses its CARESYNC mark in sponsoring and advertising with HISTalk, a healthcare IT industry website.
The disputed domain name was registered on March 25, 2016. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark, that Respondent has no rights or legitimate interests in the disputed domain name and that Respondent has registered and used the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has submitted sufficient evidence to establish common law rights in the mark CARESYNC in connection with healthcare related products and services for the purposes of the Policy. The disputed domain name incorporates Complainant’s mark in its entirety, with the addition of a hyphen between the syllables “care” and “sync”. The addition of a hyphen does not add any distinguishing feature.
The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s trademark rights. B. Rights or Legitimate Interests
Based on previous UDRP decisions, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1.
Complainant’s allegations in the Complaint and evidence submitted on this issue are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services. Complainant contends that Respondent used the disputed domain name to perpetuate a fraud on unsuspecting consumers and/or to further a “click” scheme to generate hits on the website under the disputed domain name. Respondent is not commonly known by the disputed domain name and has no license or authorization to use Complainant’s marks for any purpose.
On or about April 4, 2016, Complainant first became aware of the existence of the disputed domain name because it began receiving complaints from third parties demanding refunds for products purportedly sold by the individuals or entity behind the disputed domain name. A physician customer also contacted Complainant to ask why Complainant was targeting his patients and offering over-the-counter drugs.
Content displayed on the website located at the disputed domain incorporated Complainant’s CARESYNC mark and its related apple logo, and displayed active links to Complainant’s Apple and Android mobile apps. The content had the appearance of promoting Complainant’s products and gave the appearance of an official connection to Complainant, or that it was the official domain name for Complainant. Complainant filed complaints with Facebook and the website host in relation to the disputed domain name. On April 6, 2016, Complainant received a notification from Facebook that the unauthorized page was no longer active. That same day, the content on the website at the disputed domain name changed to delete Complainant’s trademark and logo and had replaced it with another company’s logo, MVP. At the time the Complaint was filed, the home page at the disputed domain name stated that it is “not available.”
Respondent has not submitted any evidence showing that it has any rights or legitimate interests in the disputed domain name.
The Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Under the Policy, circumstances that “shall be evidence” of bad faith include facts indicating an intentional attempt to attract for commercial gain Internet users to a website by creating a likelihood of confusion with another’s mark as to the source, sponsorship, affiliation, or endorsement of the web site. The disputed domain name was registered by Respondent approximately three years after Complainant began using its CARESYNC mark in commerce and almost four years after Complainant registered its domain name . The web site located at the disputed domain name incorporated Complainant’s CARESYNC mark and apple logo, and featured links to Complainant’s mobile app. This is evidence of Respondent’s attempt to create source confusion for commercial gain.
In addition, Respondent’s passive holding of the disputed domain name and steps to hide its true identity through the use of “robots.txt” webcrawler circumvention techniques are, under the circumstances involving this case, additional evidence of bad faith.
Respondent has failed to respond to Complainant’s contentions.
The Panel finds that the disputed domain name has been registered and used in bad faith. 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 disputed domain name, , be transferred to Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Date: July 13, 2016
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