Rexhealth.net

The timeline behind rexhealth.net

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Rex Hospital, Inc. d/b/a Rex Healthcare v. Web Advertising, Corp Claim Number: FA0804001177522 PARTIES Complainant is Rex Hospital, Inc. d/b/a Rex Healthcare (“Complainant”), represented by William S. Fultz, of Parker, Poe, Adams & Bernstein L.L.P., North Carolina, USA. Respondent is Web Advertising, Corporation (“Respondent”), Bahamas. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <rexhealth.net>, registered with Domaindoorman, LLC. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Sandra J. Franklin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on April 11, 2008; the National Arbitration Forum received a hard copy of the Complaint on April 14, 2008. On April 14, 2008, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <rexhealth.net> domain name is registered with Domaindoorman, LLC and that Respondent is the current registrant of the name. Domaindoorman, LLC has verified that Respondent is bound by the Domaindoorman, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On April 17, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 7, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@rexhealth.net by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On May 13, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <rexhealth.net> domain name is confusingly similar to Complainant’s REX HEALTHCARE mark. 2. Respondent does not have any rights or legitimate interests in the <rexhealth.net> domain name. 3. Respondent registered and used the <rexhealth.net> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Rex Hospital, Inc. d/b/a Rex Healthcare, is a not-for-profit health care business. Complainant’s healthcare facilities currently include a hospital, three wellness centers, skilled nursing and rehabilitation facilities, an outpatient diagnostic center, an urgent care center, and a surgery center. Complainant owns several trademark registrations for its REX family of marks, including a registration with the North Carolina Secretary of State for the REX HEALTHCARE mark (Reg. No. T-14754 issued April 24, 1998). Respondent registered the <rexhealth.net> domain name on November 17, 2006. Respondent’s disputed domain name resolves to a website displaying links to third-party websites in competition with Complainant. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant asserts that it has established rights in REX HEALTHCARE by registering the business name, as well as the trademark with the Secretary of the State of North Carolina. The Panel finds that state registration creates the same rights, for purposes of the Policy, as if Complainant registered its mark through the United States Patent and Trademark Office (“USPTO”). See Lee Enters., Inc. v. Polanski, FA 135619 (Nat. Arb. Forum Jan. 22, 2003) (finding evidence that the complainant had established rights in the BILLINGS GAZETTE mark through registration with the Montana and Wyoming state trademark officials); see also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding that the complainant’s trademark registrations in Pennsylvania and New Jersey operated as evidence that the complainant had sufficient standing to bring a claim under the UDRP). Therefore, pursuant to Policy ¶ 4(a)(i), Complainant has established rights in the REX HEALTHCARE mark. Respondent’s <rexhealth.net> domain name is confusingly similar to Complainant’s REX HEALTHCARE mark. Respondent’s disputed domain name contains an abbreviated version of Complainant’s mark and adds the generic top-level domain (“gTLD”) “.net.” The Panel finds that the use of an abbreviated registered mark in a disputed domain name is confusingly similar to a complainant’s mark. See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (“Notwithstanding the analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern Props.’ ‘Mod’ cononotes [sic] ‘modern’ regardless of any other dictionary meanings, so the names are substantially similar in meaning.”); see also Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated). In addition, the Panel finds that the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a mark. See Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ."). Therefore, pursuant to Policy ¶ 4(a)(i), Respondent’s <rexhealth.net> domain name is confusingly similar to Complainant’s REX HEALTHCARE mark. The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant contends that Respondent lacks rights and legitimate interests in the <rexhealth.net> domain name. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (“In the absence of direct evidence, the complainant and the panel must resort to reasonable inferences from whatever evidence is in the record. In addition . . . Paragraph 14(b) of the Rules [authorizes] a panel to draw such inferences from respondent’s failure to respond ‘as it considers appropriate.’”). Complainant contends that Respondent is not commonly known by the <rexhealth.net> domain name, nor have they ever been the owner or licensee of the REX HEALTHCARE mark. The WHOIS record for the disputed domain name lists Respondent as “Web Advertising, Corp.” This evidence, along with the fact that Respondent has failed to show any evidence contrary to Complainant’s contentions, compels the Panel to find that Respondent is not commonly known as <rexhealth.net> pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use). Complainant asserts that Respondent is using the <rexhealth.net> domain name to display links to third-party websites in competition with Complainant. The Panel finds that this type of use of a disputed domain name is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial fair use pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is using the <rexhealth.net> domain name in order to intentionally attract Internet users to its website by creating a likelihood of confusion with Complainant’s mark and offering third-party links to competing websites. The Panel infers that Respondent receives click-through fees for diverting Internet users in this fashion. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds such use of the disputed domain name constitutes bad faith registration and use. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain). In addition, Respondent’s use of the <rexhealth.net> domain name to compete with Complainant is further evidence of bad faith. The Panel finds that a registered domain name used primarily to disrupt the business of a competitor demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <rexhealth.net> domain name be TRANSFERRED from Respondent to Complainant. Sandra J. Franklin, Panelist Dated: May 27, 2008 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.