WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Humana Inc. v. Cayman Trademark Trust
Case No. D2006-0073
1. The Parties
The Complainant is Humana Inc., Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America.
The Respondent is Cayman Trademark Trust, Domain Administrator, Generic Search Terms, West Bay, Grand Cayman, Cayman Islands, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <humanna.com> is registered with BulkRegister.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2006. On January 18, 2006, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain name at issue. On January 18, 2006, BulkRegister.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 23, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 12, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 13, 2006.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on February 21, 2006. 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 leading U.S. health benefits company offering a variety of health insurance products and related services. Its 2004 revenues were US $13.1 billion and as of September 30, 2005, it had approximately 7 million members in its medical insurance programs and 1.7 million members in its specialty products programs.
The Complainant has used the mark HUMANA since as early as 1973, and owns US Trade-mark Registrations and a Canadian Trade-mark Registration for HUMANA. The Complainant owns trade-mark registrations for HUMANA & Design and for many other marks incorporating the term HUMANA in the United States and Puerto Rico. The Complainant also owns registrations for over one hundred domain names incorporating HUMANA as the second level domain, including without limitation, <humana.com>, <humana.net>, <humanahealthinsurance.com> and <humanahealthplan.com>. Its website located at “www.humana.com” received over 5 million visits in 2005.
The Complainant advertises its HUMANA mark in various media, with current advertising expenditures exceeding US $20 million per year. The mark is also publicized through co-promotions with other companies and organizations as well as unsolicited media coverage and press releases.
The Respondent registered the domain name <humanna.com> on October 28, 2001. At the date of the Complaint, the Respondent was operating an active website using this domain name.
The Respondent has failed to file any response in the present proceedings.
5. Parties’ Contentions
The Complainant’s submissions can be summarized as follows:
(a) Identical or Confusingly Similar – The domain name <humanna.com> is virtually identical to the Complainant’s mark, HUMANA, differing only by the addition of a second “n”. The repeated consonant does not significantly affect the appearance or pronunciation of the domain name. There is also no difference in meaning between HUMANA and “humanna”.
(b) Rights or Legitimate Interests – The Respondent has no rights or legitimate interest in respect of the domain name <humanna.com>. The Complainant’s use of its HUMANA trade-mark predates the Respondent’s registration of <humanna.com> by at least twenty-seven years and the Complainant has not authorized the Respondent to use or register any of the Complainant’s marks. Furthermore, the Respondent uses the domain name in connection with a portal site offering links to sites of the Complainant’s competitors, which use is not a bona fide offering of goods or services nor a legitimate non-commercial or fair use of the domain name. Lastly, the Complainant contends on information and belief that the Respondent does not operate a business under any name consisting of or incorporating HUMANA.
(c) Registered and Used in Bad Faith – The Respondent’s domain name was registered and is being used in bad faith based on the following factors: (i) use of Complainant’s mark with a portal site; (ii) disrupting the business of a competitor; (iii) diverting traffic through confusion; (iv) typosquatting; and (v) a pattern of preventing mark owners from registering corresponding domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The Domain Name is identical or confusingly similar to a trade-mark or service mark in which the Complainant has marks;
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The first issue in this matter is whether the domain name <humanna.com> is confusingly similar to the Complainant’s mark. There are two elements that must be satisfied to establish this: a) the Complainant has rights in the particular mark or marks; and b) the domain name in question is identical or confusingly similar to that mark.
The first element is readily established and independently verified by reference to the applicable Trade-marks register. In this case, presentation of certified true and correct copies of US, Canadian and Puerto Rican registrations satisfies the threshold requirement of having rights in the mark HUMANA (Imperial College of Science, Technology and Medicine v. Zahid Khan (for Imperial College Management School Alumni Association – ICMSAA), WIPO Case No. D2000-1079).
The domain name <humanna.com> differs from the mark HUMANA merely by the addition of the letter “n” in the domain name. This repeated consonant does not significantly affect the appearance or pronunciation of the domain name. This conduct is commonly referred to as “typosquatting” and creates a virtually identical and/or confusingly similar mark to the Complainant’s trade-mark (Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775). Ample authority exists to support the conclusion that “essential” or “virtual” identity is sufficient for the purposes of satisfying the second element above (See Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489 (disputed domain names include <disneychanel.com>, <disneywolrd.com>, <walddisney.com>); United Feature Syndicate, Inc. v. Mr. John Zuccarini, WIPO Case No. D2000-1449 (disputed domain name is <dillbert.com>)).
The Panel also accepts the Complainant’s submission that HUMANA is a coined term with no designated meaning, supporting the conclusion that the mark is inherently distinctive. In the Panel’s view, and in light of the Respondent’s failure to produce any evidence to the contrary, the addition of this different element does not change the meaning of the word and is therefore not sufficient to obviate or even reduce the likelihood of confusion (Emmis Television Broadcasting, L.P., d/b/a KNON-TV v. Henry Chan, WIPO Case No. D2004-0366).
The Panel therefore finds that the Complainant has satisfied the first requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the domain name <humanna.com> by establishing that its HUMANA trade-mark predates the Respondent’s registration of its domain name by at least twenty-seven years and by stating that there is no relationship between the Complainant or Respondent giving rise to any license, permission or authorization of the disputed domain name. Because the Respondent failed to respond to the Complaint, the Complainant is therefore deemed to have satisfied paragraph 4(a)(ii) of the Policy (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
Confirmation appears from the evidence that the Respondent has no rights or legitimate interests in <humanna.com>, the evidence shows that the Respondent uses its domain name in connection with a portal site offering links to sites of the Complainant’s competitors (Complainant’s Submission, Annex 13). Using the Complainant’s mark as a domain name to divert traffic to Respondent’s own portal site is not a bona fide offering of goods or services, nor is it a legitimate non-commercial or fair use of the domain name (Oki Data Americas, Inc. v. Albert Jackson, WIPO Case No. D2004-0087).
The Panel therefore finds that the Complainant has met the requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s argument that the essential facts in this case correspond to the example of bad faith cited in paragraph 4(b)(iv) of the Policy.
Firstly, the Respondent uses <humanna.com.> as a portal site offering links to the sites of the Complainant’s competitors. As already established above, the disputed domain name is virtually identical and confusingly similar to the Complainant’s trade-mark. This likelihood of confusion will result in diversion of Internet traffic from the Complainant’s site to the Respondent’s site. In this regard, it has been deemed by numerous WIPO UDRP panels that attracting Internet traffic and diverting it to website(s) selling products of complainant’s competitors by using a domain name identical or confusingly similar is evidence of bad faith under paragraph 4(b)(iv) of the Policy (See Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Edmunds.com v. Ultimate Search, Inc., WIPO Case No. D2001-1319; and National City Corporation v. MH Networks LLC, WIPO Case No. D2004-0128).
Secondly, the Panel further infers that the Respondent is benefiting from this confusion and diversion by receiving “click-through” commissions in accordance with conventional practices on the Internet when customers reach a site through a link on a portal. (Humana Inc. v. Domain Deluxe, WIPO Case No. D2005-0231).
Finally, by registering a visually and phonetically similar domain name to the Complainant’s trade-mark that is a misspelling of that mark, the Respondent is attempting to take advantage of the Complainant’s reputation by capturing traffic from Internet users looking for the Complainant, but misspelling its name. This form of “typosquatting” is considered bad faith within the meaning of the Policy (See Sanofi-aventis v. Elizabeth Riegel and Andrew Riegal, WIPO Case No. D2005-1045; and Estée Lauder Inc. v. estelauder.com, WIPO Case No. D2000-0869).
The Complainant has brought to the attention of the Panel the recent decision of National Football League Players Association, Inc. v. Cayman Trademark Trust d/b/a Trademark, WIPO Case No. D2005-0234, where the record of the Respondent maintaining basic portal websites containing numerous hyperlinks to other unrelated websites was revealed. This decision also stated that previous panels have ordered the Respondent to transfer domain name registrations, which on at least thirty-two occasions were found to be registered and used in bad faith. This demonstrated fact of the Respondent’s history in UDRP proceedings combined with the Respondent’s registration and use of the Complainant’s widely known trade-mark supports the finding of bad faith through domain name warehousing (See J.P. Morgan v. Resource Marketing, WIPO Case No. D2000-0035; Nikon, Inc and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774).
Thus, for all the above-mentioned reasons, The Panel finds that the Complainant has met the requirement of paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <humanna.com> be transferred to the Complainant.
Christopher J. Pibus
Dated: March 7, 2006