Westmore · UDRP DecisionCarefusion.net
The Panel ordered transfer of <carefusion.net>. It found the domain identical to the Complainant’s CAREFUSION mark, found no rights or legitimate interests based on the PPC parking page, sale offer, lack of authorization, and unrebutted prima facie case, and found bad-faith registration and use based on the Respondent’s inferred targeting of the mark, trademark-related PPC links, sale offer, and apparent domain-name holding activity.
The timeline behind carefusion.net
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The decision illustrates how an exact-match trademark domain, when used for industry-related PPC advertising and offered for sale, can support all three UDRP elements, particularly where the respondent provides no competing explanation. It also applies the principle that a registrant remains responsible for automatically generated advertising content and highlights the screening obligations considered relevant when bulk domain-registration activity is inferred.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION CareFusion Corporation v. James H Park Case No. D2018-1244 1. The Parties The Complainant is CareFusion Corporation of Franklin Lakes, New Jersey, United States of America (“United States”), represented by Dreitler True LLC, United States. The Respondent is James H Park of South Gyeongsang, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <carefusion.net> (the “Disputed Domain Name”) is registered with DropCatch.com 972 LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 4, 2018. On June 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 5, 2018, 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. The Center verified that the 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 June 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2018. The Center appointed John Swinson as the sole panelist in this matter on July 12, 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 The Complainant is CareFusion Corporation, a subsidiary of Becton, Dickinson and Company, a company incorporated in the United States. The Complainant is a medical technology company that manufactures and sells medical devices and products designed to reduce medication errors and prevent health care associated infections. The Complainant holds a registered trade mark for CAREFUSION in the United States, registered on September 6, 2011 (registration number 4023146) (the “Trade Mark”). The Complainant registered the domain name <carefusion.com> on October 9, 2001. The Respondent is James H Park. No response was received and therefore there is little information known about the Respondent. The Respondent registered the Disputed Domain Name on May 2, 2018. The website at the Disputed Domain Name currently resolves to a parking page containing pay-per-click (“PPC”) links and which offers the Disputed Domain Name for sale for EUR 2,500. 5. Parties’ Contentions A. Complainant The Complainant makes the following submissions. Identical or confusingly similar The Complainant has registered rights in the Trade Mark and has exclusive right to use the Trade Mark in connection with the goods and services specified. The Disputed Domain Name is identical to the Complainant’s Trade Mark, as it incorporates the Trade Mark in its entirety and simply adds the generic Top‑Level Domain (“gTLD”) “.net”. The gTLD can be disregarded in determining whether the Disputed Domain Name is identical or confusingly similar. No rights or legitimate interests The Complainant submits that the Respondent has no rights or legitimate interests in the Disputed Domain Name and is using it to aid in perpetrating fraudulent activity. The Complainant has not authorized the Respondent to use the Disputed Domain Name and the Complainant submits that it is being used for an illegitimate purpose. Registered and used in bad faith The Respondent’s registration of the Disputed Domain Name was clearly done with the full knowledge of the Trade Mark. The Complainant has had registered rights in the Trade Mark and the domain name <carefusion.com> since 2001. This was well before the Respondent registered the Disputed Domain Name. The Disputed Domain Name resolves to an inactive webpage which is for sale. The Respondent is using this page for commercial gain by creating a likelihood of confusion with the Complainant as to the source, sponsorship, affiliation or endorsement of the Dispute Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response. A. Procedural Issues The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g. , Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org , WIPO Case No. D2013-2059 ). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Disputed Domain Name incorporates the Trade Mark in its entirety, and no additional words have been added. The Disputed Domain Name is identical to the Trade Mark. The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel considers the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. At the time of this decision the Disputed Domain Name resolves to a parking page, which contains PPC links and offers the Disputed Domain Name for sale for EUR 2,500. In the circumstances, this is not a bona fide use of the Disputed Domain Name under the Policy. - The Panel accepts the Complainant’s submission that the Complainant has not authorised or otherwise given the Respondent permission to use the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The Complainant is offering the Disputed Domain Name for sale. The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted. In light of the above, the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name was registered on May 2, 2018, 17 years after the Complainant had registered rights in the Trade Mark. In light of these longstanding rights, and without the benefit of a response from the Respondent, the Panel can reasonably infer that the Respondent sought to take advantage of the reputation of the Complainant and the Trade Mark by registering the Disputed Domain Name. This is bad faith registration. The Disputed Domain Name resolves to a website which contains PPC links apparently relating to the Complainant and its industry, and which offers to sell the Disputed Domain Name. The parking page also contains a statement that the PPC links are third-party advertisements and that there is no relationship between the advertisers and the Disputed Domain Name owner or service provider. With respect to “automatically” generated links, if that is the situation here, previous UDRP panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name. Neither the fact that such links are generated by a third party, nor the fact that the Respondent itself may not have directly profited from the advertising, would prevent a finding of bad faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 3.5 . According to the Complainant, the Respondent’s email address has been used to register 6,499 domain names and the IP address hosting 821,759 domain names. In the circumstances, the Panel can reasonably infer that the Respondent is in the business of domain name holding. Previous UDRP panels have held that domainers, those undertaking bulk purchases or automated registrations, have an affirmative obligation to avoid the registration of trade mark-abusive domain names. In this case, there is no evidence before the Panel that shows the Respondent has undertaken good faith efforts to screen such registration of the Disputed Domain Name. The Respondent is using the Disputed Domain Name to trade off the Complainant’s reputation in the Trade Mark and is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s Trade Mark. The Panel is satisfied that the Respondent is usingthe Disputed Domain Name in bad faith. The Panel cannot conceive of any legitimate use that the Respondent is making of the Disputed Domain Name in these circumstances. The Respondent had the opportunity to demonstrate good faith registration and use but did not do so. The Complainant succeeds on the third element of the policy. 7. Decision 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 <carefusion.net> be transferred to the Complainant. John Swinson Sole Panelist Date: July 26, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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