The Complainant is Humana, Inc., Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America.
The Respondent is Unasi Inc. a/k/a Domaincar, Panama, Panama.
2. The Domain Name and Registrar
The disputed domain name <huumana.com> is registered with DSTR Acquisition
VII, LLC d/b/a Dotregistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2006. On January 27, 2006, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain name at issue. On January 27, 2006, DSTR Acquisition VII, LLC d/b/a Dotregistrar.com transmitted by email to the Center its verification response advising that the name of the Respondent and the name of the Registrant of the domain name <huumana.com> were different. DSTR, Acquisition VII, LLC d/b/a Dotregistrar.com confirmed the name of the registrant and provided the contact details for the administrative, billing, and technical contact. On February 1, 2006, the Center transmitted by email a notice of Complaint Deficiency to the Complainant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 1, 2006. The Center verified that the Complaint together with the amendment to 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 February 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 23, 2006.
The Center appointed Christopher J. Pibus as the sole
panelist in this matter on March 1, 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 U.S. trademark Registrations and a Canadian trademark Registration for HUMANA. The Complainant owns trademark registrations for HUMANA & Design and for many other marks incorporating the term HUMANA in the United States of America 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 <huumana.com> on April 26, 2005. 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
A. Complainant
The Complainant’s submissions can be summarized as follows:
(a) Identical or Confusingly Similar – The domain name <huumana.com> is virtually identical to the Complainant’s mark, HUMANA, differing only by the addition of a second “u”. 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 “huumana”.
(b) Rights or Legitimate Interests – The Respondent has no rights or legitimate interests in respect of the domain name <huumana.com>. The Complainant’s use of its HUMANA trademark predates the Respondent’s registration of <huumana.com> by at least thirty-two 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 the 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.
B. Respondent
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 trademark or service mark in which the Complainant has marks;
(ii) The Respondent has no rights or legitimate interests 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 <huumana.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 trademarks 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 <huumana.com> differs from the
mark HUMANA merely by the addition of the letter “u” in the domain
name. This repeated vowel 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
trademark (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 <huumana.com> by
establishing that its HUMANA trademark predates the Respondent’s registration
of its domain name by at least thirty-two years and by stating that there is
no relationship between the Complainant or the 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 (CroatiaAirlines
d.d. v. Modern Empire Internet Ltd., WIPO
Case No. D2003-0455).
Confirmation that the Respondent has no rights or legitimate interests in <huumana.com>,
appears from the evidence 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 the 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 <huumana.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 trademark. 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 trademark 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 Trend Micro Kaburshiki Kaisha v. Unasi, Inc.,WIPO Case No. D2005-0838, where the Respondent
registered the domain name in bad faith and in which it had no legitimate interest.
This decision also stated that previous panels have ordered the Respondent to
transfer domain name registrations, which on at least fifty 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 trademark 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.
7. Decision
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 <huumana.com> be transferred to the Complainant.
Christopher J. Pibus
Sole Panelist
Dated: March 6, 2006
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