Availitech.com

The timeline behind availitech.com

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.

DECISION Availity, L.L.C. v. suntong guang Claim Number: FA2401002080481 PARTIES Complainant is Availity, L.L.C. ("Complainant"), represented by Elizabeth G. Borland of Smith, Gambrell & Russell, LLP, Georgia, USA. Respondent is suntong guang ("Respondent"), China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <availitech.com> ("Domain Name"), registered with Gransy, s.r.o. PANEL The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding. Nicholas J.T. Smith as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on January 23, 2024; Forum received payment on January 23, 2024. On January 25, 2024, Gransy, s.r.o. confirmed by e-mail to Forum that the <availitech.com> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On January 25, 2024, Forum served the Complaint and all Annexes, including a Czech and English Written Notice of the Complaint, setting a deadline of February 14, 2024 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@availitech.com. Also on January 25, 2024, the Czech and English Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts. Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default in Czech and English. On February 15, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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 Complainant operates real time information network in healthcare, connecting over a million providers, health plans and their technology partners. Complainant claims rights in the AVAILITY mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,667,172, registered on December 24, 2002). Respondent's <availitech.com> domain name is confusingly similar to Complainant's mark because it incorporates the first 6 letters of the AVAILITY mark in its entirety and replaces the letter "y" with the generic abbreviation "tech" and adds the ".com" generic top-level domain ("gTLD"). Respondent lacks rights or legitimate interests in the <availitech.com> domain name. Respondent is not commonly known by the Domain Name, and Complainant has not authorized, licensed, or otherwise permitted Respondent to use the AVAILITY mark. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the Domain Name resolved to a page offering links to adult-oriented material. Respondent registered and uses the <availitech.com> domain name in bad faith. Respondent registered the Domain Name in order to disrupt Complainant's business and divert customers for commercial gain. Additionally, the Domain Name resolves to a page offering links to adult-oriented material for which Respondent likely receives a commercial gain. Finally, Respondent registered the Domain Name with actual knowledge of Complainant's rights in the AVAILITY mark. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant holds trademark rights for the AVAILITY mark. The Domain Name is confusingly similar to Complainant's AVAILITY mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name in bad faith. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." 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. 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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint"). Identical and/or Confusingly Similar Complainant has rights in the AVAILITY mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 2,667,172, registered on December 24, 2002). Registration with the USPTO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority). The Panel finds that the <availitech.com> domain name is confusingly similar to Complainant's AVAILITY mark as it consists of a minor misspelling of the AVAILITY mark (removing the letter "y") with the addition the descriptive term "tech" and the ".com" generic top-level domain ("gTLD"). The addition of a generic term along with a gTLD to a wholly incorporated trade mark does not distinguish a disputed domain name from a mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i)). Neither does the purposeful misspelling of a mark distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) ("Respondent's <morganstanle.com> domain name is confusingly similar to Complainant's MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter 'y' and spacing within the mark, and appends the '.com' gTLD."); see also OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 ("Respondent's <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter 'i' … "). The Panel finds Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case. Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the AVAILITY mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name). The WHOIS lists "suntong guang" as registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii). The Domain Name resolves to a website offering commercial content unrelated to the Complainant's business (namely links to adult content) or any descriptive meaning of the Domain Name. The use of a domain name to divert users, for commercial gain, to a website containing unrelated content such as links to adult content is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii)."). See also Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that "[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.") The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, May 30, 2023, Respondent had actual knowledge of Complainant's AVAILITY mark. There is no obvious explanation, and none has been provided by Respondent, for a party to register a domain name that consists of a minor misspelling of the registered AVAILITY mark and a generic term (one that happens to relate to Complainant's technology products) and redirect it to a website offering links to adult content unrelated to any descriptive meaning of those terms absent any awareness of Complainant and its AVAILITY mark (and intention to capitalize on Complainant's reputation in its AVAILITY mark). In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii). The Panel finds that Respondent registered and used the Domain Name in bad faith in order to resolve to a website that displays links to adult content for which Respondent would be expected to receive revenue. Use of a disputed domain name to attract users to a website hosting adult-oriented content may be evidence of bad faith per Policy ¶ 4(a)(iii). See H-D U.S.A., LLC v. Nobuyoshi Tanaka / Personal, FA 1534740 (Forum Jan. 31, 2014) ("Therefore, the Panel concludes that Respondent is acting in bad faith because Respondent is using the <harley-davidsonsales.com> domain name to tarnish Complainant's HARLEY-DAVIDSON mark, as the Panel also finds that the content displayed on the resolving website constitutes adult-oriented content."); see also Andrey Ternovskiy dba Chatroulette v. Abdelbasset Selmi, FA 1638963 (Forum Oct. 28, 2015) (finding the respondent's use of the at-issue domain name to resolve to pornographic content indicated the respondent registered and used the <chatroulette.us> domain name in bad faith per Policy ¶ 4(b)(iv)). The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii). 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 <availitech.com> domain name be TRANSFERRED from Respondent to Complainant. Nicholas J.T. Smith, Panelist Dated: February 16, 2024 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

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