national arbitration forum

DECISION

Healix Infusion Therapy, Inc. v. Supermodel Genius

Claim Number:  FA0410000347722

PARTIES

Complainant is Healix Infusion Therapy, Inc. (“Complainant”), is represented by Jennifer Sickler, of Gardere Wynne Sewell LLP, 1000 Louisiana, Suite 3400, Houston, TX 77002-5007.  Respondent is Supermodel Genius (“Respondent”), 676 South Avenue 21, #400, Los Angeles, CA 90031.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <healix.net>, registered with Go Daddy Software, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of knowledge has no known conflict in serving as Panelist in this proceeding.

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on October 19, 2004; the National Arbitration Forum received a hard copy of the Complaint on October 22, 2004.

On October 20, 2004, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <healix.net> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. 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 October 25, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 15, 2004 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@healix.net by e-mail.

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

On November 29, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <healix.net> domain name is identical to Complainant’s HEALIX mark.

2. Respondent does not have any rights or legitimate interests in the <healix.net> domain name.

3. Respondent registered and used the <healix.net> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant Healix Infusion Therapy, Inc., has continuously used the HEALIX mark in connection with, inter alia, providing health care services and medical and business management services of physician practices. Complainant also owns trademark rights in the HEALIX mark through registration with the United States Patent and Trademark Office (e.g., Reg. No. 1,982,687, issued June 25, 1996).

Respondent registered the <healix.net> domain name on February 17, 2004.  The disputed domain name resolves to a parked GoDaddy webpage that indicates that “www.healix.net coming soon!” in addition it commercial advertisements for internet-related services.

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.

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 has established rights in the HEALIX mark through registration with the United States Patent and Trademark Office.  See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”).

A domain name that entirely incorporates a third-party’s mark and merely adds a generic top-level domain has consistently been found to be identical or confusingly similar to the mark under Policy ¶ 4(a)(i).  In the instant case, the domain name incorporates Complainant’s HEALIX mark in its entirety and has merely added the top-level domain “.net.”  Consistent with previous decisions, the Panel concludes that the disputed domain name is identical to Complainant’s HEALIX mark, in which Complainant has rights. See Nikon, Inc. v. Technilab, Inc., D2000-1774 (WIPO Feb. 26, 2000) (holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name); see also 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); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that the addition of a top-level domain is without legal significance).

Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not provided the Panel with any evidence of any rights or legitimate interests in the domain name by failing to respond to the Complaint.  Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name.  Without the benefit of a response, Complainant’s assertions stand uncontested.  As a result of Respondent’s failure to respond to the Complaint, the Panel finds that Respondent has implicitly admitted that it lacks rights and legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interests in the domain names); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond).

Respondent’s domain name resolves to a “parked” Go Daddy webpage displaying commercial advertisements for Internet-related services.  The <healix.net> domain name has not been used in any manner that would indicate use of the domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).  Respondent’s domain name is identical to Complainant’s HEALIX mark and resolves to a parked commercial website.  Respondent has not demonstrated a use of the disputed domain name in connection with a  bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).  See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names, and no use of the domain names has been established); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that when Respondent declares its intent to develop a website, “[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute’”).

There is no evidence before the Panel that indicates Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered a domain name that contains in its entirety, Complainant’s HEALIX mark.  Respondent’s domain name diverts Internet users who seek Complainant’s HEALIX mark to a parked commercial website offering internet-related services.  Respondent’s failure to demonstrate a bona fide use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent made no use of the domain name or website that connects with the domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith).

Complainant has established 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 <healix.net> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  December 6, 2004

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