Decisión del Panel Administrativo nº D2021-1565 of WIPO Arbitration and Mediation Center, August 03, 2021 (case Aetna Inc. v. On behalf of help-aetna.com owner / Whois Privacy Service / Manager / Knowbe4)
| Resolution Date | August 03, 2021 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Complaint denied |
| Dominio | Generic Domains |
Complainant is Aetna Inc., United States, represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States.
Respondent is On behalf of help-aetna.com owner / Whois Privacy Service / Manager Knowbe4, United States, represented by Wilson Sonsini Goodrich & Rosati, United States.
The disputed domain name [help-aetna.com] (the “Domain Name”) is registered with Amazon Registrar, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2021. On May 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 24, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 26, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 26, 2021.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 21, 2021. The Response was filed with the Center June 18, 2021.
On June 22, 2021, Complainant submitted a request to submit a Supplemental Filing along with the Supplemental Filing. Complainant indicated in relevant part that while it was hesitant to submit the filing, it needed to do so in light of “significantly different facts” in Respondent’s Response than those that were known to Complainant (or could have been known) when it filed the Complaint, and to ensure that “an egregious abuse of the domain name system” is not tolerated. Also on June 22, 2021, Respondent submitted an email stating that in accordance with Rule 12 of the Rules, only “the Panel may request, in its sole discretion, further statements or documents from either of the Parties”, that the Panel had not made such a request, and that the Panel should therefore either disregard the Supplemental Filing or provide Respondent with leave to file a further response.
The Center appointed Christopher S. Gibson, Brian J. Winterfeldt, and Martin Schwimmer as panelists in this matter on July 9, 2021. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant provides individuals, employers, health care professionals, producers, and others with insurance benefits, products, and services. Complainant was founded in 1853 and was acquired in 2018 by CVS. CVS is a publicly traded health care company in the United States, with annual revenue in 2020 of USD 268.7 billion and approximately 300,000 workers in more than 9,900 retail locations and approximately 1,100 walk-in medical clinics in 49 states, the District of Columbia, and Puerto Rico, serving 4.5 million customers daily. CVS ranks as number 5 on the “Fortune 500” list of America’s largest corporations.
Complainant serves approximately 22.1 million medical members, approximately 12.7 million dental members, and approximately 13.1 million pharmacy benefit management services members. Complainant’s health care network includes about 1.2 million health care professionals, more than 700,000 primary care doctors and specialists, and more than 5,700 hospitals. Complainant, via Aetna Life Insurance Company, is the registrant of and uses the domain name [aetna.com], which was registered on November 2, 1993.
Complainant (directly or via CVS or CVS Pharmacy, Inc., the principal operating company of CVS) is the owner of at least 158 trademark registrations in at least 42 jurisdictions worldwide for marks that consist of or contain AETNA. Complainant’s registrations for the AETNA mark include the following in the United States, the oldest of which asserts a first use date in commerce of more than 115 years ago:
- Reg. No. 1,939,424, first used in commerce December 31, 1905; registered December 5, 1995
- Reg. No. 1,939,423, first used in commerce February 1, 1982; registered December 5, 1995
The AETNA trademark registrations contain a stylized version of the word AETNA in purple, along with an image of a heart. The AETNA logo appears prominently throughout Complainant’s website using the domain name [aetna.com], as well as elsewhere. Previous UDRP panels have found that Complainant has rights in the AETNA trademark. See, e.g., Aetna Inc. and CVS Pharmacy, Inc. v. James,[WIPO Case No. D2018-0796]; and Aetna Inc., CVS Pharmacy, Inc. v. Chang Jiang Li, Li Chang Jiang,[WIPO Case No. D2018-0795].
Respondent was founded in 2010, employs over 1000 people, and is a public company whose stock is traded on the NASDAQ exchange. The company has over 37,000 corporate customers, including Fortune 500 companies, well-known banks, credit unions and other financial institutions, as well as state and municipal governments. Respondent and its programs have won honors from Gartner, Forrester, Microsoft Intelligent Security Association, Deloitte, Fortune, and Inc. magazine. Respondent has developed a platform enabling organizations to assess, monitor, and minimize the threat of social engineering computer attacks. The platform reflects an integrated approach to security awareness using cloud-based software, artificial intelligence, advanced analytics, and employee training. As part of the platform, Respondent employs a library of content for use by its corporate customers in simulated phishing attacks. This library is continuously refreshed to ensure that Respondent’s educational offerings reflect the latest range of social engineering threats.
Respondent registered the Domain Name on October 28, 2020. The Domain Name is used in connection with Respondent’s computer security training programs.
(i) Identical or confusingly similar
Complainant contends the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Complainant states that the Domain Name contains the AETNA trademark in its entirety, plus a hyphen (“ - ”) and the word “help”. Complainant submits that the inclusion of a hyphen in the Domain Name is irrelevant for purposes of the Policy. Complainant further contends that the fact the Domain Name includes the word “help” is irrelevant for purposes of confusing similarity under the Policy: so long as the trademark is recognizable within the domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) will not prevent a finding of confusing similarity. Finally, Complainant asserts that the overall impression of the Domain Name is one of being connected to Complainant’s trademark. Accordingly, Complainant concludes the Domain Name is identical or confusingly similar to the AETNA mark.
(ii) Rights or legitimate interests
Complainant contends Respondent has no rights or legitimate interests in the Domain Name. Complainant has never assigned, granted, licensed, sold, transferred, or authorized Respondent to register or use the AETNA trademark in any manner. Complainant contends that this fact, on its own, can be sufficient to prove the second criterion of the Policy.
Further, Complainant asserts that Respondent is using the Domain Name in connection with a phishing scam that imitates and falsely purports to be from Complainant. Complainant has submitted a copy of an email allegedly sent from the address “[…]@help-aetna.com” that contains the subject line, “Patient Care Refund.” Complainant contends that the body of this email contains Complainant’s AETNA logo, used without authorization or permission; falsely informs the recipient that, “Due to the current epidemic, you are eligible for your Health Care Overpayment Refund to help get by during this time”; and invites the recipient to click on a link “to Get Started on your Health Refund.” Complainant argues that by using the Domain Name in connection with a phishing scam imitating Complainant, Respondent has failed to create a bona fide offering of goods or services under the Policy – and, therefore, Respondent cannot demonstrate rights or legitimate interests. Complainant submits that UDRP panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/ passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.
To Complaint’s knowledge, Respondent has never been commonly known by the Domain Name and has never acquired any trademark or service mark rights in the Domain Name. Therefore, Complainant asserts that Respondent cannot establish rights or legitimate interests under the Policy. Further, given Complainant’s use of the AETNA mark for more than 115 years...
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