WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Georgetown Hospital System d/b/a Tidelands Health v. Zhichao Yang
Case No. D2018-1258
1. The Parties
1.1 The Complainant is Georgetown Hospital System d/b/a Tidelands Health of Georgetown, South Carolina, United States of America, represented by Nelson Mullins Riley & Scarborough, L.L.P., United States of America.
1.2 The Respondent is Zhichao Yang of Anhui, China.
2. The Domain Name and Registrar
2.1 The disputed domain name <tidelandhealth.org> (the “Domain Name)” is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 5, 2018. On June 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 6, 2018, the Registrar transmitted by email to the Center its verification response, in which it identified the “underlying” registrant of the Domain Name. Hereinafter, save where the contrary is apparent from the context, references to the Respondent in this decision are references to that person. In response to a notification by the Center the Complainant filed an amended Complaint on June 18, 2018.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 9, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 10, 2018.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on July 16, 2018. 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
4.1 The Complainant operates a number of hospitals and also provides outpatient facilities in South Carolina. The first of these hospitals opened in 1950. It has used “Tidelands Health” in respect of those activities since at least April 2015. It has also owned the domain name <tidelandshealth.org> since April 16, 2014. This domain name is currently used for the Complainant’s website, through which it advertises and promotes its various healthcare services.
4.2 The Complainant is the owner of United States registered trade mark 4868287 for TIDELANDS HEALTH as a standard character mark in class 44. It was filed on January 7, 2015 and proceeded to registration on December 8, 2015. It is subject to a disclaimer in respect of the “exclusive right to use ‘Health’“.
4.3 The Domain Name was registered on March 4, 2018. It has been used since registration to display a pay-per-click parking page, with health or medical related links.
4.4 The WhoIs details now available for the Domain Name suggest that the Respondent is an individual in China.
4.5 On March 29, 2018 the Complainant’s attorneys sent a cease and desist letter to the privacy service, the details of which were then publicly displayed in response to a WhoIs search. A reminder was sent on April 13, 2018. The Complainant’s attorneys received no response to their letter.
4.6 A pay-per-click parking page continues to operate from the Domain Name as at the date of this decision.
5. Parties’ Contentions
5.1 The Complainant describes it business and registered mark. It contends that the Domain Name is virtually identical to the Complainant’s registered trade mark, noting that the only difference between the second level of the Domain Name and that mark is the omission of the letter “s”. It also observes that the omission of the letter “s” is the only difference between the Domain Name and the domain name used in respect of the Complainant’s activities.
5.2 The Complainant contends that the Respondent has no rights or legitimate interests in the Domain Name, claiming that none of the examples of such rights or legitimate interests identified in the Policy apply in this case. In this respect, it also contends that the nature of the Domain Name is such that this is not a case of rights or legitimate interests potentially arising out of the use of a potentially descriptive term in connection with a pay-per-click page that displays links related to the descriptive meaning; citing section 2.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It, therefore, submits that the Respondent is attempting to redirect Internet traffic for its own profit to a parked website containing only sponsored links to third-party websites including the Complainant’s competitors.
5.3 The Complainant advances various contentions as to why the Respondent is likely to have been aware of the Complainant at the time the Domain Name was registered, and that the Domain Name was registered and has been used in bad faith. They include the fact that the Respondent has used a US based registrar. It also repeats the claim that the Respondent deliberately chose the Domain Name to target US Internet users that would be familiar with the Complainant and the TIDELANDS HEALTH Mark in order to confuse Internet users and divert traffic to the Domain Name for the Respondent’s own financial gain. Reference is made in this respect, inter alia, to paragraph 4(b)(iv) of the Policy.
5.4 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the present dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge any Response.
6.2 Notwithstanding this default, it remains incumbent on the Complainant to make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (Policy, paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (Policy, paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
6.3 However, under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the panel shall “draw such inferences therefrom as it considers appropriate”.
A. Identical or Confusingly Similar
6.4 The Panel accepts that the Complainant has registered trade mark rights in the standard character mark “Tidelands Health”. The most sensible reading of the Domain Name is as the words “Tideland” and “Heath” in combination with the <.org> Top- Level Domain (“TLD”). Therefore, apart from the TLD, the only difference between the Domain Name and the mark relied upon is the omission from the Domain Name of the letter “s”. Given this the Domain Name is clearly confusingly similar to that trade mark.
6.5 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.6 As is discussed in the context of bad faith, the Panel accepts that the text of each of the Domain Names was chosen by the Respondent so as to incorporate a misspelled version of the Complainant’s mark. The Panel also accepts this was done in order to take advantage of potential confusion between each of the Domain Names and the Complainant’s mark so as to draw Internet users to
6.7 There is no right or legitimate interest in holding a domain name for such a purpose and such conduct is prima facie evidence that no such right or legitimate interest exists (see section 2.9 of the WIPO Overview 3.0).
6.8 It follows that the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
6.9 Although the Complainant does not quite expressly contend this, in effect it is claimed that this is a typosquatting case; i.e. the Domain Name was registered because it represents a mistyping of the Complainant’s name and mark and has been subsequently used to redirect Internet users to a website of a competitor to the Complainant.
6.10 The Panel accepts that this is so. Tideland is not an ordinary English word although it is suggestive of a place name. The combination of that word with the word “health”, suggests a business or website which offers health related services in connection with that place, but the combination is nevertheless unusual. It would not be an obvious choice of name for a business or website operating out of China and absent any explanation from the Respondent as to why it was chosen, the most likely explanation is that the choice was made with the Complainant’s business and marks in mind. A powerful factor that supports that conclusion is the fact that the Domain Name is a “.org” domain name and the domain name used by the Complainant is similarly a “.org” domain name, such that the only difference between the Domain Name and the domain name used by the Complainant is the omission of the letter “s”.
6.11 Another relevant factor here is that the Domain Name has not been used for any active website by the Domain Name other than a pay-per-click parking page. “Tideland Health” has no obvious descriptive or generic meaning that is unassociated with the Complainant, and this pay-per-click use also suggest that the Domain Name was registered and held to gain some form of financial advantage.
6.12 The Panel is not particularly convinced by the Complainant’s arguments based upon the fact that the Respondent has chosen a registrar based in the United States. Similarly, on the particular facts of this case, the non-response to the Complainant’s cease and desist letter, does not strike the Panel as a particularly compelling argument given that this letter was directed to the Registrar’s privacy service. But the nature of the Domain Name itself and the use that has been made of it is more than sufficient for the Panel to conclude that the Complainant is right when it contends that the Respondent’s activities fall within the scope of paragraph 4(b)(iv) of the Policy.
6.13 It follows that the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <tidelandhealth.org> be transferred to the Complainant.
Matthew S. Harris
Date: July 27, 2018