The Complainant is Humana Inc., United States of America (“United States”), represented by Middleton Reutlinger, United States.
The Respondent is WhoisGuard, Inc., Panama / Larry Desmond, xyz Inc., United States. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2019. On June 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 27, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 1, 2019 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 July 5, 2019.
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 July 11, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 31, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2019.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on August 6, 2019. 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 major United States healthcare and health insurance group operating under the Humana name since 1973. It is incorporated in the State of Delaware, United States, and headquartered in Louisville, Kentucky, United States. It is a Fortune 500 company with 2018 revenues exceeding USD 56 billion. The Complainant attaches evidence showing that the Complainant expends more than USD 440 million annually advertising and promoting the HUMANA brand.
The Complainant holds several trademark registrations for HUMANA as a standard character mark, including United States trademark registration number 1305479 (registered November 13, 1984).
The Registrar’s WhoIs database shows that the Domain Name was created on June 6, 2019. The Domain Name was originally registered in the name of the Registrar’s domain privacy service, WhoisGuard, Inc., which has expressed no interest in the Domain Name in this proceeding. After receiving notice of this UDRP Complaint, the Registrar identified the Respondent Larry Desmond and “xyz Inc.” as the registrant, listing a postal address in “Cottge [sic] Grove MN”, United States. There is a City of Cottage Grove in the State of Minnesota, a suburb in the Minneapolis-St. Paul metropolitan area. However, no “xyz Inc.” is listed as a domestic or foreign company registered to do business in the state, according to the online database operated by the Minnesota Secretary of State.
At the time of this Decision, the Domain Name does not resolve to an active website. However, the Complaint attaches screenshots showing that the Domain Name formerly resolved to a landing page with pay-per-click (“PPC”) advertising links to websites offering information about medical, dental, and Medicare insurance, along with unrelated products such as auto insurance. Some of these linked to the Complainant’s own website, while others linked to those of third parties, including the Complainant’s competitors such as Aetna.
The Complaint also includes evidence of another use of the Domain Name, for an email scam. On June 12, 2019, less than a week after registering the Domain Name, an email was sent to an employee of one of the Complainant’s vendors, using the Domain Name as an email account and purporting to be from the Complainant’s “IT Purchasing Manager”. The fraudulent email requested delivery of goods worth USD 175,000 to a self-storage unit rather than to the Complainant’s usual warehouse address. The vendor, suspicious about the address change, reported it to the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant argues that the Domain Name is confusingly similar to its HUMANA trademark, and that the Respondent has no rights or legitimate interests to use the mark in the Domain Name.
The Complainant contends that the Domain Name misleads Internet users for commercial gain and that the Respondent has used the Domain Name in bad faith for an email account as part of a fraudulent scheme to impersonate a purchasing officer. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the 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 domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “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”. A. Identical or Confusingly Similar
The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Complainant indisputably holds registered HUMANA standard character trademarks. The Domain Name incorporates the mark in its entirety and adds the “inc” abbreviation that does not avoid confusion. This abbreviation universally signifies a corporation in the United States (such as the Complainant itself). As in most cases, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. Id.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s HUMANA trademark for Policy purposes and concludes that the Complainant has established the first element of the Complaint. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondents may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following:
(i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or
(iii) the Respondent is 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.
Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. Here, the Complainant has grounded its prima facie case by establishing its trademark rights, confusing similarity, a lack of permissive use, and actual use of the Domain Name for PPC advertising unrelated to any legitimate generic meaning of the Domain Name, as well as email use in connection with a fraudulent scheme. This shifts the burden to the Respondent, which has not come forward to assert rights or legitimate interests.
The Panel finds that the Complainant prevails on the second element of the Complaint. C. Registered and Used in Bad Faith
The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following suggested by the Complainant (in which “you” refers to the registrant of the domain name):
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location.”
This example is apt in the present circumstances, with respect to the use of the Domain Name for PPC advertising for competing and unrelated services.
Moreover, the examples in paragraph 4(b) are not exclusive, and the employment of the Domain Name in furtherance of an apparent fraud scheme, shortly after acquiring the Domain Name, is compelling evidence of bad faith both in the registration and use of the Domain Name. See, e.g., Valero Energy Corp. and Valero Marketing and Supply Co. v. Valero Energy,WIPO Case No. D2017-0075; eBay Inc. v. Douglas Bennett,WIPO Case No. D2015-1178 (using domain names to facilitate attempted fraud is bad faith within the meaning of the Policy).
The Panel notes that this same Respondent appears in another recent UDRP proceeding involving nearly identical facts. See BAE Systems PLC v. WhoisGuard Protected, WhoisGuard, Inc. / Larry Desmond, XYZ Inc.,WIPO Case No. D2019-0617 (using the domain name to pose as the complainant’s “IT Purchasing Manager” and request the delivery of large quantities of IT equipment). The panel in that proceeding readily found bad faith and ordered the transfer of the domain name.
The Panel finds bad faith on these facts and concludes that the Complainant has established the third element of the Complaint. 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 Name , be transferred to the Complainant.
W. Scott Blackmer
Sole Panelist
Date: August 13, 2019
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