The Complainant is Allergy Partners, P.L.L.C., United States of America (“United States”), represented by Nelson Mullins Riley & Scarborough, L.L.P., United States.
The Respondents are Domain Administrator, Fundacion Privacy Services LTD, Panama, and Domain Admin, Whois Privacy Corp., Bahamas.
2. The Domain Names and RegistrarsThe disputed domain name
The disputed domain name
Both domain names are collectively hereinafter referred to as the “disputed domain names”.
3. Procedural HistoryThe Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2021. On August 19, 2021, the Center transmitted by email to the Registrars requests for registrar verification in connection with the disputed domain names. On August 20, 2021and August 24, 2021, the Registrars transmitted by emails to the Center their verification responses disclosing registrants and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 30, 2021, providing the registrants 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 28, 2021.
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 October 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2021. The Respondent did not submit any response. Pursuant to paragraph 6 of the Rules, on October 27, 2021, the Center informed the Parties that it would proceed to appoint the panel.
The Center appointed Mario Soerensen Garcia as the sole panelist in this matter on November 10, 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 BackgroundThe Complainant is Allergy Partners, P.L.L.C., a North Carolina professional limited liability company and the United States’ largest single-specialty practice in allergy, asthma, and immunology, with a current network of 173 providers and over 125 office locations in 20 states.
The Complainant has used the mark ALLERGY PARTNERS since 1994 and owns the United States registrations No. 4955397 and 4955395, both filed on August 21, 2015, and registered on May 10, 2016.
The Complainant operates a website from the domain name
The disputed domain names
The Complainant requests to consolidate multiple Respondents saying that despite the fact that their identity is unknown as they used privacy services for the registrations of the disputed domain names, the evidence tends to support the finding that they are under common control and that consolidation would be fair and equitable to all parties. According to the Complainant, the disputed domain names:
- are associated with the same mail server;
- share the same hosting company and name servers;
- were registered within a few days of each other in May 2021; and
- target Complainant’s ALLERGY PARTNERS mark,
which justifies consolidation and suggests common control.
The Complainant argues that it has established significant notoriety and goodwill in its ALLERGY PARTNERS trademark and that the disputed domain names wholly incorporates it in addition to the terms “ofnj”, which is an abbreviation for “of New Jersey” as well as “cloud”, which implies “cloud computing associate with Allergy Partners”. The Complainant says that the inclusion of such terms does not prevent a finding of confusing similarity under the first element.
According to the Complainant, given the reputation of its trademarks, the disputed domain names were registered to intentionally confuse and mislead consumers. The Complainant also claims that the Respondent lacks rights and any legitimate interests in the disputed domain names, and that it has not made a legitimate noncommercial or fair use of the disputed domain names. Instead, the disputed domain names resolved to websites that feature pay-per-click sponsored advertisements for third-party products and services such as cloud computing and cloud storage or moving services or to redirect to a variety of third-party websites.
Additionally, the Complainant mentions that the Respondent’s identity is unknown as it used privacy services and that on July 7, 2021, it sent cease and desist letters to the Respondent to try to solve the case, but the Respondent did not reply to them, which is further evidence of bad-faith.
The Complainant therefore concludes that none of these uses would constitute fair use by the Respondent and that the disputed domain name was registered with full knowledge of the Complainant’s rights in the trademark ALLERGY PARTNERS.
Finally, the Complainant requests the transfer of the disputed domain names.
B. RespondentThe Respondents did not reply to the Complainant’s contentions.
6. Discussion and FindingsAs per paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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. ConsolidationParagraph 10(e) of the Rules grants a panel the power to consolidate multiple domain name disputes. At the same time, paragraph 3(c) of the UDRP Rules provides that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder. Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), sections 4.11.1 and 4.11.2.
Prior panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate. In these circumstances, the Panel considers relevant the fact that both disputed domain names share the same mail server, hosting company, and name servers, as well as the fact that both disputed domain names were registered within a few days of each other and both under a privacy service. Noting the common targeting of the Complainant’s mark and the Respondents failure to respond, the Panel believes consolidation is appropriate in these circumstances and will proceed on the basis that the disputed domain names are under common control. Hereinafter, the Panel will refer to the “Respondent”.
B. Identical or Confusingly SimilarThe evidence presented in the Complaint demonstrates that the Complainant is the owner of trademark registrations for ALLERGY PARTNERS in the United States, as well as the domain name
The disputed domain names comprise the trademark ALLERGY PARTNERS in its entirety. Indeed, the addition of the terms “ofnj” and “cloud” does not avoid confusion between the disputed domain names and the trademark, because ALLERGY PARTNERS remains recognizable. See section 1.8 of the WIPO Overview 3.0.
It is the general view among UDRP panels that the addition of merely dictionary, descriptive or geographical words to a trademark in a domain name would not avoid a finding of confusing similarity under the first element of the UDRP (for example, Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd,WIPO Case No. D2001-0110).
Also, as numerous prior UDRP panels have already recognized, the incorporation of a trademark in its entirety or a dominant feature of a trademark is sufficient to establish that a domain name is identical or confusingly similar to the complainant’s mark. See section 1.7 of the WIPO Overview 3.0.
The Panel finds that paragraph 4(a)(i) of the Policy has been proved by the Complainant, i.e., the disputed domain name is confusingly similar to the Complainant’s trademarks.
C. Rights or Legitimate InterestsThe Respondent has not submitted a response to the Complaint nor did it reply to the cease and desist letters sent by the Complainant.
There is no evidence that the Respondent has any authorization to use the Complainant’s trademark or to register a domain name containing the trademark ALLERGY PARTNERS.
There is no evidence that the Respondent is commonly known by the disputed domain names.
There is also no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name or that before any notice of the dispute the Respondent has made use of, or demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Instead, there is evidence in the Complaint that the Respondent has used the disputed domain names in an attempt to redirect Internet traffic for its own profit to a parked website containing sponsored links to third-party websites.
The Panel finds that the use of the disputed domain names, which incorporates the Complainant’s trademark, does not correspond to a bona fide use of the disputed domain name under the Policy. Rather, the construction of the disputed domain names themselves is such to carry a risk of implied affiliation with the Complainant, which cannot constitute fair use. See section 2.5.1 of the WIPO Overview 3.0.
For the above reasons, the Panel finds that the condition of paragraph 4(a)(ii) of the Policy has been satisfied, i.e., the Respondent has no rights or legitimate interests in the disputed domain names.
D. Registered and Used in Bad FaithThe trademark ALLERGY PARTNERS was duly registered by the Complainant in the United States and has been used for at least the past 27 years. Also, the Complainant registered the domain name
A domain name that entirely reproduces the mark ALLERGY PARTNERS is already suggestive of the Respondent’s bad faith. It does not seem to make any sense for the Respondent to register the disputed domain names, except to mislead consumers. Therefore, this Panel finds that the Respondent has intentionally attempted to cause confusion with the Complainant’s trademark by misleading Internet users to believe that the disputed domain names belong to or are associated with the Complainant.
The disputed domain names confusingly reproduce the Complainant’s trademarks and the Respondent has no association with the Complainant.
Moreover, the Respondent has chosen not to respond to the Complainant’s allegations. In these circumstances, and as found in the UDRP panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”.
As per the Complaint and the evidence presented, it seems unlikely that the Respondent would not have been aware of the Complainant at the time of the registration of the disputed domain names. On the other hand, the evidence indicates that the Respondent indeed registered the disputed domain names to use them for the purpose of generating click through revenue, to redirect Internet traffic to an alternative website, or even to facilitate the creation of email addresses for purposes of future fraudulent messages.
In any case, the Respondent’s behavior shows a clear intent to obtain unfair commercial gain and also hid its true identity using a privacy protection service.
Therefore, this Panel finds that the Respondent has intentionally attempted to obtain some kind of commercial gain with the registration of the disputed domain names.
This Panel finds that the Respondent’s attempt of taking unfair advantage of the trademark ALLERGY PARTNERS as described in paragraph 4(b)(iv) of the Policy has been demonstrated and that the condition of paragraph 4(a)(iii) of the Policy has been satisfied, i.e., the disputed domain names were registered and are being used in bad faith.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names
Mario Soerensen Garcia
Sole Panelist
Date: November 23, 2021