The Complainant is Top Doctors Inc., United States of America (“United States”), represented by CMS Rodríguez Azuero, Colombia.
The Respondent is Cassandra Italia, Intermedika Pte Ltd (now Solger Industry Pte. Ltd.), Singapore. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2019. On April 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 18, 2019, 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, in English and Spanish, to the Parties on April 23, 2019, regarding the language of the proceeding, as the Complaint has been submitted in Spanish and the language of the registration agreement for the Disputed Domain Name is English. The Complainant submitted a Complaint translated into English on April 26, 2019. The Respondent did not reply to the Center’s notification.
The Center verified that the Complaint together with the translated 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 1, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 21, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 23, 2019.
The Center appointed John Swinson as the sole panelist in this matter on May 27, 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 Top Doctors Inc., a company incorporated in the United States. The Complainant operates a website which provides patients with access to doctors around the world. The Complainant operates in a number of countries, including in Argentina, Chile, Colombia, Spain, the United States, Italy, Mexico, and the United Kingdom.
The Complainant owns and operates its business from the domain name which was registered on June 25, 2014. The Complainant owns a number of registered trade marks for TOPDOCTORS, including Colombian trade mark number 501226 registered on December 29, 2014 (the “Trade Mark”).
The Respondent is Cassandra Italia, Intermedika Pte Ltd (now Solger Industry Pte. Ltd.), a company incorporated in Singapore. The Disputed Domain Name was registered on May 9, 2017. The Respondent is using the website at the Disputed Domain Name to a doctor referral service in a number of countries in the Asia Pacific region. No response was received from the Respondent and therefore little information is known about the Respondent. 5. Parties’ Contentions A. Complainant
The Complainant makes the following submissions. Identical or Confusingly Similar
The Disputed Domain Name incorporates the Trade Mark in its entirety and no additional terms have been added. Rights or Legitimate Interests
The Respondent does not have any rights or legitimate interests in the Disputed Domain Name because:
- The Respondent has not been commonly known by the Disputed Domain Name.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain, since the website at the Disputed Domain Name offers a commercial service identical to those offered by the Complainant.
- The Complainant has not licensed or otherwise allowed the Respondent to use the Trade Mark.
- The Disputed Domain Name was registered with the Colombian country code Top-Level Domain (“ccTLD”), a territory in which the Respondent does not have any commercial establishment. Registered and Used in Bad Faith
The Respondent registered the Disputed Domain Name on May 9, 2017, which is 3 years after the Complainant registered the Trade Mark. A simple Internet search would have revealed the Complainant’s Trade Mark. The fact that the Respondent registered the Disputed Domain Name which is identical to the Trade Mark is a clear indication of bad faith on behalf of the Respondent.
The Respondent has intentionally tried to attract, for profit, Internet users to its website by creating confusion with the Complainant’s brand as to the origin, sponsorship, affiliation or promotion of its website. The website at the Disputed Domain Name offers services which compete with the Complainant, which is clear evidence that the website is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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 has been registered and is being used in bad faith.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response. A. Procedural Issues
The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyP,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is identical to the Trade Mark, as it incorporates the Trade Mark in its entirety and no additional terms have been added. The only difference is that the Disputed Domain Name uses the ccTLD “.co”, as opposed to the generic Top-Level Domain (“gTLD”) “.com”. This is irrelevant when assessing whether a domain name is identical or confusingly similar to a trade mark (see section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel considers the Complainant has made out a prima facie case. This finding is based on the following:
- The website at the Disputed Domain Name is being used to provide a doctor and hospital referral service. The Panel accepts that this is in competition with the services offered by the Complainant at . However, the website at the Disputed Domain Name does not always function appropriately and some of the links do not work. The website has links to pay-per-click (“PPC”) or affiliate sites that have medical and travel offerings.
- The Panel accepts the Complainant’s submission that the Complainant has not authorized or otherwise given the Respondent permission to use the Disputed Domain Name.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or even common law trade mark rights in relation to the Disputed Domain Name.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. In this case, the Disputed Domain Name is identical to the Trade Mark and the website is being used to offer doctors and health referral services, in competition with the Complainant, from which the Respondent may derive a profit.
Fundamentally, a respondent’s use of a domain name will not be considered “fair” if it falsely suggests affiliation with the trade mark owner (see section 2.5 of the WIPO Overview 3.0). UDRP panels have found that domain names identical to a complainant’s trade mark carry a high risk of implied affiliation. In this case there is a strong likelihood that consumers would think there is a sponsorship or endorsement of the website by the Complainant.
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
To succeed in a complaint under the Policy, it is well established that under the third element of the Policy, a complainant must prove on the preponderance of the evidence is that the domain name in issue was registered in bad faith, i.e., was registered with the complainant and/or its trade mark in mind.
In this case, the Respondent registered the Disputed Domain Name on May 9, 2017, which is 3 years after the Complainant registered the Trade Mark. While the Complainant’s Trade Mark is somewhat descriptive or suggestive, the fact that its competitor, the Respondent, chose not to defend its case, makes the Panel infer that the Respondent knew of and targeted the Complainant for unfair purposes. Coupled with the fact that the Disputed Domain Name is nearly the same as the Complainant’s domain name, this moreover suggests a sufficient reputation in the Complainant’s Trade Mark. Given the similarity of the content at the Complainant’s website and the website at the Disputed Domain Name, the Panel finds that the Disputed Domain Name was registered in bad faith.
Given the use that the Respondent is making of the Disputed Domain Name (i.e., copying the Complainant’s name and business), the Panel finds that the Respondent registered and is using the Disputed Domain Name in an intentional attempt to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of his website, location, or of a product or service on his website or location. The Respondent is using the Trade Mark in the Disputed Domain Name to trade off the Complainant’s name and reputation, and to misleadingly divert Internet users to her own website.
This is evidence of registration and use in bad faith under paragraph 4(b)(iv) of the Policy.
In light of the above, and in the absence of a response and any evidence rebutting bad faith registration and use, the Complainant succeeds on the third element 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 be transferred to the Complainant.
John Swinson
Sole Panelist
Date: June 20, 2019
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