WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Clinical Resources Group, Inc. v. Anna Bednářová, NEROSO Inst., s.r.o.
Case No. D2017-0169
1. The Parties
The Complainant is Clinical Resources Group, Inc. of Scottsdale, Arizona, United States of America ("United States"), represented by Polsinelli PC Law firm, United States.
The Respondent is Anna Bednářová, NEROSO Inst., s.r.o. of Prague, Czechia.
2. The Domain Name and Registrar
The disputed domain name <carecorps.net> is registered with Gransy, s.r.o. d/b/a subreg.cz (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 27, 2017. On January 30, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 31, 2017, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on February 3, 2017.
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 February 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 1, 2017.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on March 10, 2017. 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 concerned in the supply of employer-site based medical services, medical consultation, medical testing and medical clinics for employees of private and public sector employers, in the United States and internationally. The Complainant is the owner of the trademark:
CARECORPS, word mark, United States Patent and Trademark Office (USPTO), principal register, registered July 29, 2008, registration number 3477661, class 44.
The Complainant also uses the domain name <carecorpsclinics.com>.
The Respondent has not provided any background information except for the name and address provided to the Registrar for the purpose of registration of the disputed domain name, which was created on October 13, 2016. The disputed domain name redirects to parking pages with pay-per-click links.
5. Parties' Contentions
The Complainant contends that it has rights in the trademark CARECORPS, which is well known and well advertised throughout the United States where it has the status of an incontestable trademark. The Complainant says the disputed domain name is effectively identical to its trademark.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has never been affiliated with the Complainant or been authorised to use the Complainant's trademark.
The Complainant says the disputed domain name is not in use for a bona fide supply of goods or services. The secured computer first used to attempt to access the disputed domain name to explore its authenticity, detected a security threat and reacted by blocking access. An unsecured computer was used to capture screen shots showing the disputed domain name to be redirected to other websites. The content of those websites variously offered the disputed domain name for sale, links to assorted goods and services, or pornography. The Complainant asserts that the disputed domain name is not in fair or noncommercial use and is not a name by which the Respondent is commonly known.
The Complainant further contends that the disputed domain name was registered and is being used in bad faith by the Respondent. The Respondent must have been aware of the Complainant's trademark, which had been in use for 10 years at the time of registration of the disputed domain name. The Complainant alleges that the Respondent is using the disputed domain name as part of an active criminal enterprise because attempts to make contact by using a secure computer generated a notice stating that the webpage is an "active criminal fraud site". The Complainant reiterates that the disputed domain name "is solely being used for apparently criminal purposes". The Complainant says the Respondent is using the disputed domain name for commercial gain by diverting traffic away from the Complainant.
The Complainant has submitted an Affidavit of its President and CEO stating key elements of its case.
The Complainant has cited certain previous decisions under the Policy that it considers to support its position in this case.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:
"(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith".
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
A. Identical or Confusingly Similar
The Complainant has produced a copy of a USPTO registration document in respect of the trademark CARECORPS. The Panel is satisfied by the evidence that the Complainant has the requisite rights in the trademark for the purposes of paragraph 4(a)(i) of the Policy.
The disputed domain name is <carecorps.net>. The generic Top-Level Domain (gTLD) designation ".net" may be disregarded in the determination of confusing similarity. The disputed domain name effectively resolves to "carecorps", which is found to be identical to the Complainant's trademark and the Panel therefore finds for the Complainant in the terms of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has asserted prima facie that the Respondent has no rights or legitimate interests in respect of the disputed domain name, is not affiliated with the Complainant and is not authorised to use the Complainant's trademark.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant's prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in the disputed domain name by demonstrating, without limitation:
"(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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".
The Respondent has not contested the Complaint and has not asserted any rights or legitimate interests in the disputed domain name with reference to paragraphs 4(c)(i), (ii) or (iii) of the Policy or otherwise, nor does the Panel, on the available evidence, envisage any way in which the Respondent could reasonably do so. The Panel finds for the Complainant in the terms of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant is required to prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line 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".
The Complainant has alleged (in the matter of bad faith as well as in the context of rights and legitimate interests) that the Respondent's website has been used in connection with criminal activity. Notwithstanding that decisions under the Policy are made on the balance of probabilities, any such allegation of criminal activity, in order to be substantiated, would require an appropriately high standard of evidence. The Complainant's evidence in this respect comprises solely a screen capture of a notice displayed by the computer of the Complainant's representative law firm, bearing the name and logo of the law firm, Polsinelli, stating initially, "This domain is blocked due to a security threat". The screen goes on to state, "The Polsinelli Communication Systems Policy forbids access to active criminal fraud sites for security reasons". There follow suggestions as to who to contact if the block may be in error.
In the Panel's interpretation, the Complainant's law firm's computer alert would be one selected as being technically apt from the computer's repertoire of pre-written security notices and does not definitively support the Complainant's assertions that the Respondent's website "is an 'active criminal fraud site'" and "is solely being used for apparently criminal purposes". The Panel has not been provided with evidence of criminal intent on the part of the Respondent in this case.
Screen captures produced by the Complainant made with a different computer illustrated two different websites to which the disputed domain name was redirected on December 29, 2016. Both portrayed what appeared to be parking pages with advertising links, however one had been redirected to a URL commencing "ww62" and the other to a URL commencing "ww92". (The Panel has reason to believe the URL prefixes "ww62" and "ww92" may be associated with a notoriously pernicious form of advertising software, but since no evidence has been offered on the matter, it is not pursued in this Decision). One redirected page was marked "Buy this domain. carecorps.net", and the other, with the heading "carecorps.net", said "This Page is Under Construction - Coming Soon!". Both websites had lists of link headings, the links clearly stated on one website to have been generated automatically by an advertising placement contractor, as follows: "The Sponsored Listings displayed above are served automatically by a third party. (...)" An algorithm had evidently generated link headings containing either "care" or "corps" on both pages, for example "Care for Sale", "Creme Corps", "Anti Corps" and "Cats Care".
On the evidence and on the balance of probabilities the Panel finds the disputed domain name to have been in use, and primarily offered for sale, since a parking website to which it ultimately resolved was so marked, and profitable intent may reasonably be inferred in all the circumstances. The business of registering and trading in domain names for profit, per se, is not necessarily illegitimate, but in this instance where the disputed domain name comprises the registered trademark of the Complainant without authorisation, the Respondent's activity cannot be legitimate. The disputed domain name is found to have been registered primarily with a view to profitable sale to the Complainant or a competitor of the Complainant so as to constitute registration in bad faith within the meaning of paragraph 4(b)(i) of the Policy, and furthermore, to have been used for that purpose by resolving to a parking website marked "Buy this domain". A competitor of the Complainant need not be a commercial or business competitor (Mission KwaSizabantu v. Benjamin Rost, WIPO Case No. D2000-0279).
The Panel further finds the disputed domain name to have been in use for advertising purposes by means of the links accessible through its redirected parking pages. Having regard to all the circumstances, the Panel finds it more probable than not that the Respondent has intended to derive a share of the advertising revenue in accordance with the common industry model of the monetisation of websites that are parked pending possible sale. The means of attraction of visitors to the Respondent's ultimate websites is the disputed domain name, which is identical to the Complainant's registered trademark. Thus the Respondent is found, on balance, to have intended to attract Internet visitors to the disputed domain name by confusion with the Complainant's trademark for commercial gain in the terms of paragraph 4(b)(iv) of the Policy.
Accordingly the disputed domain name is found to have been registered and used in bad faith under paragraph 4(a)(iii) of the Policy.
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 <carecorps.net> be transferred to the Complainant.
Dr. Clive N.A. Trotman
Date: March 20, 2017