The Complainants are Intermountain Health Care, Inc. and IHC Health Services, Inc.1 of Salt Lake City, Utah, United States of America (“United States”) (collectively, the “Complainant”), represented by Stoel Rives LLP, United States
The Respondent is Angel Henderson of Washington, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Ascio Technologies, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 19, 2016. On August 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On August 23, 2016, 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. The Center sent an email communication to the Complainant on August 25, 2016 requesting clarification of the Complaint regarding mutual jurisdiction. The Complainant filed an amendment to the Complaint on August 25, 2016 (the Complaint and the amendment to the Complaint are hereinafter referred to as the “Complaint”).
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 30, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 19, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 20, 2016.
The Center appointed Lynda M. Braun as the sole panelist in this matter on October 18, 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
The Complainant is a well-known nonprofit system of hospitals, surgery centers, doctors, clinics, and homecare and hospice providers in the United States. The Complainant has 22 hospitals, more than 185 clinics, 1,400 multi-specialty doctors and caregivers and over 37,000 employees.
The Complainant owns federal trademarks for INTERMOUNTAIN HEALTHCARE for hospital, medical, health care and educational services in the United States (the “INTERMOUNTAIN HEALTHCARE Mark”). The Complainant has used the INTERMOUNTAIN HEALTHCARE Mark continuously and extensively since 1975, and own registrations including, but not limited to United States Registration Numbers 1,913,834; 2,733,735; 3,309,180; 3,309,181; 3,309,182; 3,309,183; 3,309,184; and 3,309,185, all of which have been registered on the Principal Register of the United States Patent and Trademark Office (the “USPTO”) since as early as August 22, 1995.
The Complainant owns several domain names through which it promotes its healthcare facilities and services. These include ; ; ; ; and .
The Disputed Domain Name was registered on April 28, 2016, four decades after the Complainant began to use the INTERMOUNTAIN HEALTHCARE Mark and more than twenty-one years after the INTERMOUNTAIN HEALTHCARE Mark was first registered at the USPTO. The Disputed Domain Name currently resolves to an Internet page that states: “This site cannot be reached. The webpage … might be temporarily down or it may have moved permanently to a new web address.”
The Respondent has been using an email address associated with the Disputed Domain Name and has been including the INTERMOUNTAIN HEALTHCARE Mark in online job advertisements to falsely claim an association with the Complainant by giving job seekers the false impression that the Complainant created the job posting. The Respondent apparently claims to be from the Complainant’s hiring department and invite job applicants to participate in online interviews with the Respondent. They instruct the applicants to use Google Hangouts to participate in the interviews with the Respondent. During such interviews, the Respondent asks the applicants to provide personal and financial information under the guise of an offer of employment with the Complainant.
On August 8, 2016, the Complainant sent a cease and desist letter to the Respondent, demanding transfer of the Disputed Domain Name to the Complainant. The letter was returned to the Complainant because the Respondent provided an invalid mailing address on the Registrar’s WhoIs database. 5. Parties’ Contentions A. Complainant
The following are the Complainant’s contentions:
- The Disputed Domain Name is confusingly similar to the Complainant’s trademark.
- The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
- The Disputed Domain Name was registered and is being used in bad faith.
- The Respondent is using the Disputed Domain Name as part of a fraudulent recruitment scheme to deceive job-seekers into believing that the Complainant’s hiring department is inviting them to interview for a job.
- The Complainant seeks the transfer of the Disputed Domain Name from the Respondent in accordance with paragraph 4(i) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order for the Complainant to prevail and have the Disputed Domain Name transferred to the Complainant, the Complainant must prove the following (Policy, paragraph 4(a)):
(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) The Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar
This element consists of two parts: First, does the Complainant have rights in a relevant trademark or trademarks and, second, is the Disputed Domain Name identical or confusingly similar to that trademark.
It is uncontroverted that the Complainant has established rights in the INTERMOUNTAIN HEALTHCARE Mark based on both longstanding use as well as its multiple federal trademark registrations for the INTERMOUNTAIN HEALTHCARE Mark. The Disputed Domain Name consists of the INTERMOUNTAIN HEALTHCARE Mark connected by a hyphen, and followed by the generic Top-Level Domain (“gTLD”) “.com”.
Although the Disputed Domain Name contains a hyphen between the words “intermountain” and “healthcare”, this is irrelevant for purposes of the Policy because the presence or absence of punctuation marks such as hyphens cannot on their own avoid a finding of confusing similarity. See Six Continents Hotels, Inc. v. Helen Siew,WIPO Case No. D2004-0656(citing Six Continents Hotels, Inc. v. Georgetown, Inc.,WIPO Case No. D2003-0214 (hyphens do not “serve to dispel Internet user confusion here”); Fort Knox National Company v. Ekaterina Phillipova,WIPO Case No. D2004-0281 (“[T]his Panel believes that the expression true-pay is similar to the trademark TRUEPAY”).
Finally, the addition of a Top-Level Domain (“TLD”) such as “.com” in a domain name is technically required. Thus, it is well established that such element is usually disregarded when assessing whether a disputed domain name is identical or confusingly similar to a trademark. Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182.
Accordingly, the first element of paragraph 4(a) of the Policy has been met by the Complainant. B. Rights or Legitimate Interests
Under the Policy, a complainant may make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name at issue. Once such a prima facie case is made, the burden of production 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 do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1.
The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use its INTERMOUNTAIN HEALTHCARE Mark. The Complainant does not have any type of business relationship with the Respondent, nor is the Respondent making a legitimate noncommercial or fair use of the Disputed Domain Name. Instead, the Panel finds that the Respondent was improperly using the Disputed Domain Name for commercial gain. According to the evidences provided by the Complainant, the Respondent has been using the Disputed Domain Name as part of a phishing scheme in which the Respondent contacts job applicants using an email address associated with the Disputed Domain Name to create the impression that the emails are being sent by the Complainant’s hiring department in order to illegitimately induce them to provide personal and financial information. Such a phishing scheme cannot be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Disputed Domain Name. See CMA CGM v. Diana Smith, WIPO Case No. D2015-1774.
In this case, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent has not submitted any evidence to rebut the Complainant’s prima facie case.
Accordingly, the second element of paragraph 4(a) of the Policy has been met by the Complainant. C. Registered and Used in Bad Faith
The Panel finds that based on the record, the Complainant has demonstrated the Respondent’s bad faith registration and use of the Disputed Domain Name pursuant to paragraph 4(a)(iii) of the Policy.
First, the Respondent’s use of the Disputed Domain Name for a phishing scheme to email job-seeking individuals fake job offers purporting to come from the Complainant, and to collect the personal and financial information of such individuals, evidences a clear intent to disrupt the Complainant’s business, deceive individuals, and trade off the Complainant’s goodwill by creating an unauthorized association between the Respondent and the Complainant’s INTERMOUNTAIN HEALTHCARE Mark. See Banco Bradesco S.A. v. Fernando Camacho Bohm, WIPO Case No. D2010-1552. Such conduct is emblematic of the Respondent’s bad faith registration and use of the Disputed Domain Name.
Numerous UDRP panels have found that email-based phishing schemes that use a complainant’s trademark in the disputed domain name are evidence of bad faith. See, e.g., DeLaval Holding AB v. Registration Private, Domains By Proxy LLL / Craig Kennedy, WIPO Case No. D2015-2135; Petróleo Brasileiro S.A. - Petrobras v. AK Bright, WIPO Case No. D2013-2063 (considering the reputation of the complainant and the emails sent by the respondent using the complainant’s trademark, the respondent is held to have registered and used the disputed domain name in bad faith).
Second, the Respondent’s registration of the Disputed Domain Name that is almost identical to the Complainant’s well-known registered trademark is also evidence of bad faith. See Ebay Inc. v. Wangming, WIPO Case No. D2006-1107; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (use of a name connected with such a well-known service and product by someone with no connection to the service and product suggests opportunistic bad faith).
Based on the circumstances here, the Respondent registered and used the Disputed Domain Name in bad faith in an attempt to impersonate the Complainant and create a likelihood of confusion with the Complainant’s INTERMOUNTAIN HEALTHCARE Mark.
Third, the Panel finds that the Respondent had actual knowledge of the Complainant’s rights in its widely-used INTERMOUNTAIN HEALTHCARE Mark when registering the Disputed Domain Name. The Respondent’s actual knowledge of the Complainants’ rights can be inferred from the Respondent’s fake job advertisements designed to look like they were posted by the Complainant and statements to job candidates that the Respondent is a member of the Complainant’s hiring department. In addition, the Respondent registered the Disputed Domain Name decades after the Complainant first used and obtained its numerous trademark registrations for the INTERMOUNTAIN HEALTHCARE Mark.
Finally, additional evidences of the Respondent’s bad faith can be inferred from its lack of reply to the cease and desist letter sent by the Complainant and Respondent’s failure to reply in this proceeding. See Awesome Kids LLC and/or Awesome Kids L.L.C. v. Selavy Communications, WIPO Case No. D2001-0210.
Accordingly, the third element of paragraph 4(a) of the Policy has been met by the Complainant. 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 the Complainant.
Lynda M. Braun
Sole Panelist
Date: October 21, 2016
1 IHC Health Services, Inc. is a wholly owned subsidiary of Intermountain Health Care, Inc.
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