Generic Top Level Domain Name (gTLD) Decisions

The Complainant is Select Medical Corporation, Mechanicsburg, PA, USA ("Complainant") represented by Terence A. Dixon, of Dechert. The Respondent is Frederick Coppola d/b/a MDFC, Houston, TX, USA ("Respondent").

The domain name at issue is "selectspecialty.com" registered with Network Solutions.

On January 15, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed James P. Buchele as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 20, 2000; the Forum received a hard copy of the Complaint on December 20, 2000.

On December 22, 2000, Network Solutions confirmed by e-mail to the Forum that the domain name "selectspecialty.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0 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 December 22, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 11, 2001 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@selectspecialty.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant alleges the following:

Complainant runs a national network of specialized health-care facilities and services including long-term acute care hospitals, inpatient and outpatient rehabilitation, and contract therapy services. Complainant currently operates over 50 hospitals and over 700 outpatient clinics throughout the United States and Canada.

Complainant has used the trademark SELECT SPECIALTY in commerce on a continuous basis in connection with heath care operations since June 1998. The registration of the Mark on the Principal Register for the "provision of inpatient and outpatient long-term acute health care services" was issued on December 28, 1999. Complainant has invested substantial time, money and effort in advertising and promoting its Mark and in building up the good will associated with it. By virtue of these efforts, Complainant has developed considerable recognition of and good will in this Mark.

Complainant has registered the domain name SELECTMEDICALCORP.COM and operates a web site at that URL through which it promotes and provides information about the company, including its SELECT SPECIALTY medical services network.

Respondent registered the domain name SELECTSPECIALITY.COM on March 7, 2000. Based on the investigation, Complainant believes that MDFC may be a fictional entity and that Mr. Coppola is in essence the real registrant. Technically, the SELECTSPECIATY.COM web site consists of an HTML frameset whose frame source is http://home.earthlink.net/~sharranc/. In other words, the content displayed on SELECTSPECIATY.COM comes from another web site created by Mr. Coppola under a different domain name. Browsers not capable of running frames are redirected to http://home.earthlink.net/~sharranc/.

Prior to Respondent’s receipt of notice of this dispute, the SELECTSPECIATY.COM web site consisted of a single page advertising the domain name for lease and featuring prominent hypertext links to the web sites of two of Select Medical’s business competitors, Vencor Inc. and HealthSouth Corporation. The web site contained no disclaimer or warning that the site or those two companies were not associated with Complainant’s SELECT SPECIALTY network. The site also featured an automated counter to show how many "hits" the site had received.

After receiving the cease and desist letter from Complainant’s counsel, Respondent changed the content of the SELECTSPECIATY.COM web site (the "Post-Notice Web Site") and claimed that he planned to start a "Select Specialty" on-line merchandise business. The Post-Notice Web Site currently contains images of knickknacks that appear to be copied from a legitimate merchandise site, "Gifts4All," at www.adeegift.com/webshopping/info.html. Although Respondent purports to be offering these knickknacks for sale, he offers no means of ordering on the Internet. Instead, Respondent asks his putative customers to send orders and payment through the mail. Respondent also refused Complainant’s offer to reimburse his out-of-pocket expenses related to the registration of the domain name in exchange for the transfer of the domain name.

The domain name SELECTSPECIATY.COM is identical to Complainant’s mark SELECT SPECIALTY. Respondent has no rights or legitimate interests in respect of the domain name SELECTSPECIATY.COM. Respondent has never been known by the term "Select Specialty." Nor has Respondent used the domain name in connection with a bona fide offering of goods or services. Respondent is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the mark at issue.

The domain name was registered and used in bad faith. Respondent registered the domain name primarily for the purpose of sale to Complainant or a Competitor. Moreover, Respondent intended to use the domain name to disrupt Complainant’s business and attract Internet users by creating likelihood of confusion.

B. Respondent

Respondent has not submitted a response in this matter.

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panelist may infer, for the purposes of this decision, that the averments in the complaint are true. See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that based on Respondent’s failure to respond, the Panel draws two inferences: 1) that Respondent does not deny the facts asserted by Complainant, and 2) Respondent does not deny conclusions which the Complainant asserts can be drawn from the facts).

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the 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.

The domain name SELECTSPECIATY.COM is identical to Complainant’s mark SELECT SPECIALTY, as it consists of the identical words without a space and with the ".com" extension. See Croatia Airlines v. Kwen Kijong, AF 0302 (eResolution Sept. 25, 2000) (finding that the domain name "croatiaairlines.com" is identical to the Complainant's trademark "Croatia Airlines"); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

Complainant has used the Mark in commerce on a continuous basis in connection with heath care operations since June 1998 and registered the Mark with the Patent and Trademark Office on December 28, 1999. Prior to the notice of the dispute, Respondent’s use of the domain name to create a web site for the purpose of advertising the domain name for lease and linking to the web sites of Complainant’s competitors is neither a legitimate use in connection with a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Policy ¶ 4(c)(i); 4(c)(iii). See Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark); Wal-Mart Stores, Inc. v. Walmarket Canada, D2000-0150 (WIPO May 2, 2000) (finding that the Respondent had no rights or legitimate interests where he decided to develop the website for the sale of wall products after receiving the Complainant’s "cease and desist" notice).

Moreover, Respondent is not commonly known by the domain name. Policy ¶ 4 (c)(ii). See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that the Respondent is not commonly known by the mark contained in the domain name where the Complainant has not permitted the Respondent to use the NOKIA mark and no other facts or elements can justify prior rights or a legitimate connection to the names "Nokia" and/or "wwwNokia").

Respondent included an offer to "lease" the domain name on the web site at SELECTSPECIALITY.COM. However, he refused the Complainant’s offer to reimburse his out-of-pocket expenses related to the registration of the domain name in exchange for the transfer of the domain name. These facts demonstrates his bad faith in registration and use of the domain name. Policy ¶ 4 (b)(i). See Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).

Moreover, Respondent placed direct hyperlinks on the web site at SELECTSPECIALITY.COM to two of Complainant’s competitors, which further proves his bad faith in using the domain name. Policy ¶ 4(b)(iii). See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to website that competes with Complainant’s business); Puckett, Individually and d/b/a Nature’s Window v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from the Complainant to a competitor’s website in violation of Policy 4(b)(iii)).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "selectspecialty.com" be transferred from the Respondent to the Complainant.