The Complainant is Rady Children’s Hospital and Health Center, United States of America (“US”), represented by Ropes & Gray LLP, US.
The Respondent is 杨智超 (Zhi Chao Yang), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2021. On January 11, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 12, 2021, 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 January 12, 2021 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 January 17, 2021. On January 12, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on January 15, 2021. The Respondent did not comment on the language of the proceeding. 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 in English and Chinese, and the proceedings commenced on January 22, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 11, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 19, 2021. The Center appointed Douglas Clark as the sole panelist in this matter on March 12, 2021. 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 Rady Children’s Hospital and Health Center, the parent and sole statutory member of Rady Children’s Hospital - San Diego. Rady Children’s Hospital is a nonprofit, 505-bed pediatric care facility in California focused on care, research, and teaching. Rady Children’s Hospital opened with a dozen patients in 1954 amid a polio epidemic and now has some 5,100 employees. Rady Children’s Hospital provided care to more than 237,000 children from July 2019 through June 2020. The Complainant is the registrant of US Trademark RADY CHILDREN’S Registration No. 3,479,163 registered on August 5, 2008 in a slightly stylized form together with a kite device for hospital services. The Respondent is an individual based in China. The disputed domain name was registered on April 2, 2020 and resolves to a parking page that provides click through links to various hospital or medical services. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to its RADY CHILDREN’S trademark. The entirety of the Complainant’s mark is within the five-word disputed domain name and the disputed domain name is so obviously indicative of Complainant’s services that Respondent’s use of the disputed domain name has already or will inevitably lead to confusion of some sort. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. There is no relationship or affiliation between the Complainant and the Respondent giving rise to any license, permission, or other right by which the Respondent could own or use any domain name incorporating the Complainant’s mark. Further, the Respondent has not used or prepared to use the disputed domain name in connection with any bona fide offering of goods or services or made any noncommercial or fair use of the disputed domain name. The Complainant contends that the Respondent’s registration and use of the disputed domain name is in bad faith. It says the disputed domain name was deliberately chosen to take advantage of the Complainant’s reputation and clearly amounts to an intentional attempt to attract, for commercial gain, Internet users to the Respondent’s website or by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website thereby generating click through revenue. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issues – Language of the Proceeding According to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. In this case, the language of the Registration Agreement for the disputed domain name is in Chinese. Based on the given evidence, there is no agreement between the Complainant and Respondent regarding the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds: a) the disputed domain name is in the Latin letters and includes four English words; b) the disputed domain name is registered as a “.com” domain name indicating a desire to target a worldwide audience; c) the content of the website associated with the disputed domain name is a series of health- or medical-related links, all in English, which link to further English content; and d) it would be unfair to require the Complainant, an American children’s hospital operating in the midst of the Covid-19 pandemic, to undertake costly translation of its Complaint, and it would result in unwarranted delay. In accordance with paragraph 11(a) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances: - the Center has notified the Respondent of the proceeding in both English and Chinese; - the Respondent has not commented on the language of the proceeding nor has responded to the Complainant in any way; and - the disputed domain name resolves to a page in English which links to other pages in English. 6.2 Substantive Issues The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action: (i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights to; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name The Panel notes that the Complainant does not rely on any registered trademarks for RADY CHILDREN’S in China where the Respondent is located. The ownership of a trade mark is generally considered to be a threshold standing issue. The location of the trade mark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trade mark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview 3.0). The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain name. Section 2.1 of the WIPO Overview 3.0 provides: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” The Complainant has asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s RADY CHILDREN’S trade mark or to apply for registration of the disputed domain name. In addition, the Respondent has not responded to any of the Complainant’s contentions. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent. The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The disputed domain name resolves to a website with links to health and medical service providers and, apparently, generates click through revenue. This shows a direct link between medical services for which the Complainant is known and the use of the disputed domain name. It is clear to the Panel that the Respondent has registered the disputed domain name to attract Internet users looking for the Complainant to the website for commercial gain in accordance with paragraph 4(c)(iv) of the Policy. Accordingly, the Panel finds that the disputed domain name was registered and has been used in bad faith. The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy. 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 Douglas Clark
Sole Panelist
Date: March 31, 2021
Full & Egal Universal Law Academy