DECISION

Aetna Inc. v. Yong Li

Claim Number: FA0308000183724

PARTIES

Complainant is Aetna Inc., Hartford, CT (“Complainant”) represented by Faye A. Dion. Respondent is Yong Li, Beijing, China (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <aetnausa.com> registered with Iholdings.com, Inc. d/b/a Dotregistrar.com.

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.

Honorable Paul A. Dorf (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 8, 2003; the Forum received a hard copy of the Complaint on August 11, 2003.

On August 13, 2003, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <aetnausa.com> is registered with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of the name. Iholdings.com, Inc. d/b/a Dotregistrar.com has verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.com 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 August 14, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 3, 2003 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@aetnausa.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.

On September 17, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.

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 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 <aetnausa.com> domain name is confusingly similar to Complainant’s AETNA mark.

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

3. Respondent registered and used the <aetnausa.com> domain name in bad faith.

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

FINDINGS

Since 1853 Complainant and its affiliates have continuously used the AETNA name and mark in connection with a wide variety of insurance, financial and health care services. Complainant provides evidence of a number of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the AETNA mark, including registration number 1,939,423 (registered on December 5, 1995) related to health care services provided through preferred provider or exclusive provider organizations, health maintenance organizations and point-of-service plans.

Respondent registered the <aetnausa.com> domain name on May 31, 2002. Respondent is using the disputed domain name to redirect Internet traffic to a variety of websites, including <onlinepills.com>, <starluckcasino.com> and <gotoo.com/treasure/med.htm>, which offer, inter alia, online gambling and pharmaceuticals.

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 its rights in the AETNA mark through registration with the USPTO and continuous use in commerce since 1853.

Respondent’s <aetnausa.com> domain name is confusingly similar to Complainant’s AETNA mark because the disputed domain name incorporates Complainant’s entire mark and merely adds the letters “usa,” the abbreviation for the United States of America, to the end of the mark. The addition of these letters does not sufficiently distinguish the domain name from the mark in accord with Policy ¶ 4(a)(i). See Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that Respondent’s domain name <go2AOL.com> was confusingly similar to Complainant’s AOL mark); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to Complainant’s federally registered service mark, “Kelson”).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has failed to come forward and submit a Response to Complainant’s allegations. Therefore, the Panel accepts all reasonable allegations and inferences in the Complaint as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertion in this regard”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Furthermore, based on Respondent’s failure to respond, the Panel presumes Respondent lacks any rights to or legitimate interests in the disputed domain name. See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a response or provided the Panel with evidence to suggest otherwise); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”).

Respondent is using the <aetnausa.com> domain name to divert Internet users to a variety of commercial websites, which offer, inter alia, online gambling and pharmaceuticals. Respondent’s commercial use of a domain name confusingly similar to Complainant’s AETNA mark is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Oly Holigan, L.P. v. Private, FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate interest in a misspelled domain name as Respondent was merely using it to redirect Internet users to, inter alia, an online casino); see also G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (finding that because Respondent is using the infringing domain name to sell prescription drugs it can be inferred that Respondent is opportunistically using Complainant’s mark in order to attract Internet users to its website).

Moreover, Respondent has proffered no proof and the record is bereft of evidence that Respondent is commonly known by AETNA USA or <aetnausa.com>. Therefore, the Panel finds that Respondent has failed to establish any rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established.

Registration and Use in Bad Faith

Complainant contends that Respondent’s use of a domain name confusingly similar to the AETNA mark to divert Internet traffic to commercial websites demonstrates Respondent’s bad faith registration and use of the <aetnausa.com> domain name. The Panel concludes that, by registering and using the disputed domain name, Respondent intended to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent).

The Panel finds that 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 <aetnausa.com> domain name be TRANSFERRED from Respondent to Complainant.

Honorable Paul A. Dorf (Ret.), Panelist

Dated:  October 2, 2003

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