The Complainant is Humana Inc., Louisville, Kentucky, United States of America, represented by Greenebaum Doll & Mcdonald PLLC, United States of America.
The Respondent is Spiral Matrix, 1st Floor Muya House, Kenyatta Ave., P.O.BOX
4276-30100, Eldoret 30100, Kenya.
2. The Domain Name and Registrar
The disputed domain name <medicarehumana.com> is registered with Intercosmos
Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 28, 2006. On June 29, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On June 29, 2006, Intercosmos Media Group d/b/a directNIC.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 July 4, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 25, 2006.
The Center appointed Clive L. Elliott as the sole panelist in this matter on
August 2, 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
Complainant is one of the United States’ largest publicly traded health benefits companies, offering a diversified portfolio of health insurance products and related services through traditional and consumer-choice plans to employer groups, government-sponsored programs and individuals.
Complainant’s revenues for the year ending December 31, 2005, were US $14.4 billion. As of March 31, 2006, Complainant had approximately 9.3 million members in its medical insurance programs and 1.9 million members in its specialty products programs.
Complainant owns registrations for over 100 domain names consisting of or incorporating
“humana” as the second level domain, including <humana.com>,
<humana.net>, <humanamedicare.com> and <humana-medicare.com>.
5. Parties’ Contentions
A. Complainant
Complainant asserts that it has used the mark HUMANA since 1973. It goes on to say that the mark is promoted widely through advertising in various media, including newspapers, magazines, radio and websites. In addition to Complainant’s own significant efforts and expenditures with respect to its mark, the HUMANA mark receives a great deal of media attention globally and nationally. Complainant asserts that it has established its rights in the HUMANA mark in the US and in other jurisdictions a virtue of this use.
It states that the second-level domain of Respondent’s <medicarehumana.com> domain name wholly incorporates Complainant’s trademark. It further says that the only additional matter is the designation “medicare”, referring to a federal health insurance program of the United States government, in which Respondent can have no proprietary interest.
The term “medicare” however, designates one of the areas of healthcare insurance services in which Complainant is engaged. Complainant submits that the additional matter not only fails to distinguish Respondent’s domain name from Complainant’s famous mark, it serves to exacerbate the confusion.
Complainant asserts that Respondent has not used MEDICAREHUMANA in connection with a bona fide offering of goods or services. Rather, Respondent has used the domain name in connection with a portal site offering links to the sites of Complainant’s competitors.
Complainant contends that Respondent is using Complainant’s mark as a domain name to divert traffic to Respondent’s own portal and that this 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.
On this basis it contends that the Respondent’s use of the <medicarehumana.com> domain name as a portal site offering links to the sites of Complainant’s competitors constitutes registration and use in bad faith. Complainant submits that Respondent clearly had actual knowledge of Complainant’s rights in its HUMANA mark, as Complainant is one of the many businesses referenced on the portal site links. In addition, it says the registration of a domain name primarily for the purpose of disrupting the business of a competitor constitutes bad faith.
Finally, it asserts that the intentional registration and use of a domain name incorporating another party’s well known trademark is evidence of an intentional attempt to attract, for commercial gain, visitors to the registrant’s site by creating a likelihood of confusion as to source, sponsorship or affiliation.
B. Respondent
The Respondent did not reply to the Complainant’s contentions. The Panelist
is only able to assess the evidence and submissions filed by Complainant. In
the absence of any contrary assertion or dispute those assertions and submissions
are presumed to be correct.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain names the Complainant must prove that:
(i) the domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interest in respect of the domain names; and
(iii) the domain names have been registered in bad faith and are being used in bad faith.
Having considered the Complaint, the Panelist finds that all requirements of paragraph 4(a) of the Policy are met. The basis for reaching this view is set out below.
A. Identical or Confusingly Similar
It is clear from the evidence that Complainant has used its HUMANA trademark since at least 1973 and that this use is extensive. It is apparent that by virtue of such use the trademark is both distinctive and a valuable asset of the company. In the absence of contradiction by the Respondent this evidence is accepted.
It is found that the Complainant’s trademark provides it with protectable rights pursuant to the Policy. The disputed domain name clearly adopts the core element of the trademark and the addition of the non-distinctive and indeed descriptive element “medicare” does little to change this. Complainant submits that the additional matter not only fails to distinguish Respondent’s domain name from Complainant’s mark, it serves to exacerbate the confusion. This submission has merit in this particular case.
Accordingly, the Panel is satisfied that the first element of the Policy has been met.
B. Rights or Legitimate Interests
Once a complainant makes a prima facie case the burden shifts to the
respondent to establish rights or legitimate interests in the disputed domain
name; seeDo The Hustle, LLC v. Tropic Web, WIPO
Case No. D2000-0624 (finding that once the complainant asserts that the
respondent does not have rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide credible evidence that
substantiates its claim of rights and legitimate interests in the domain name).
The Panelist concludes that, on the basis of the record and in the absence of any effort to contradict Complainant’s assertions and submissions, a prima facie case is established under this ground.
The question is whether in the absence of any response from Respondent the Panelist is able to ascertain whether any possible explanation for the registration and use of the domain name exists. However, it seems that the most likely explanation is the one put forward by the Complainant, namely that the Respondent has used the domain name in connection with a portal site offering links to the sites of the Complainant’s competitors.
On the basis of this un-contradicted assertion it is reasonable to infer that no right or legitimate interest exists on the side of the Respondent and that the Respondents motives are not legitimate. Thus the Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
It is now well-established as to what constitutes bad faith under the Policy. Given the substantial reputation and goodwill in the Complainant’s trademark and for the reasons given above it is difficult to see how the Respondent can claim to have registered and be using the disputed domain names in good faith.
The Panel is therefore satisfied that the third element of the Policy has been
met.
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 <medicarehumana.com> be transferred to the Complainant.
Clive L. Elliott
Sole Panelist
Dated: August 16, 2006
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