HSO Business Systems Inc. v. Health Services Organization

[Indexed as:  HSO v. Health Services]
[Indexed as:  HSO.COM]

eResolution Integrity Online
Administrative Panel Decision

Case No:  AF-0152
Commenced:  April 20, 2000
Judgment:  May 30, 2000

Presiding Panelist:  Margaret Chon

Domain name - Domain name dispute resolution policy - U.S. Service mark - U.S. Domain name - Identical - Rights or legitimate interest - Bad faith registration - Bad faith use - Reverse domain name hijacking.

Complainant is owner of the service mark HSO for computer services.  Respondent is owner of the domain name HSO.COM.  Complainant alleged that the domain name at issue was identical to its service mark and that Respondent had no legitimate interest in the domain name.  Respondent alleged that Complainant engaged in reverse domain name hijacking.

Held:  Name Not Transferred to Complainant

Complainant conceded that Respondent did not register the domain name in bad faith, but believed that Respondent was not using the domain name effectively.  A complainant must prove that a domain name has been registered and is being used in bad faith before the domain name can be cancelled or transferred.  Complainant's concession demonstrates that Complainant cannot prove the existence of bad faith.  Complaint must be rejected.

ICANN rules do not state a burden of proof regarding reverse domain name hijacking.  Respondent provided no evidence to support its allegation, other than the filing of the complaint.  Mere filing of a complaint cannot be proof of bad faith, otherwise every unsuccessful domain name complaint would be subject to a finding of abuse of administrative process.  Respondent has not demonstrated that Complainant engaged in reverse domain name hijacking.
 

Policies referred to

Uniform Domain Name Dispute Resolution Policy 

Service Agreements referred to

Network Solutions, Inc. Service Agreement, effective from 1997
Cases referred to
--

Panel Decision referred to

--

Parties and Contested Domain Name

See caption above.

Procedural History

HSO Business Systems Inc. (hereinafter Complainant or HSO BSI) filed a complaint on-line through eResolution's website on March 17, 2000. A signed print copy of the complaint was filed on April 17, 2000. The eResolution Clerk forwarded a copy of the complaint to Respondent Health Systems Organization (hereinafter Respondent or HSO) on April 20, 2000, which is the commencement date of the administrative proceeding. 

Respondent submitted a response on May 10, 2000. On May 17, the undersigned panel member agreed act as a panelist, and on May 19, the parties were notified of the appointment of the panelist. 

Factual Background 

Complainant is the owner of a federally registered service mark "HSO" for computer services. The federal service mark registration was issued on November 30, 1999. Complainant's primary place of business appears to be Virginia, USA. 

Respondent is the owner of a domain name "hso.com," registered through Network Solutions, Inc. in 1997. The URL is used to offer health care services to patients in Ontario, Canada. The hso.com website is in active use, garnering about 1,000 hits per month. 

Complainant first contacted respondent in April 1999 about the possible sale or transfer of "hso.com." Complainant initiated the current administrative proceeding in April 2000. 

Parties' Contentions 

Complainant alleges in count 4C of its complaint that : 

(1) it has rights in the service mark HSO, which is identical to the hso domain name in dispute; 
(2) respondent has no legitimate interests in the hso.com website, because the respondent operates under the name of Primary Care Associates, and because the hso.com website makes very few references to Health Services Organization, which is apparently an alter ego of Primary Care Associates. 

Complainant also alleges «« improper identification and confusion to many of our business associates »» stemming from respondent's website. However, there is no record evidence supporting this assertion. 

Complainant concedes in the same count that ««We do not believe that the domain name was registered in bad faith ; however, we believe that it is not being used effectively for the organization that currently has the domain registered. »» 

Respondent points out in 3b of its response that : 

 
(1) it has used the domain name hso.com in connection with the offering of health care services in Ontario, as evidenced by advertising ; 

(2) its official name is Health Services Organization, with an alter ego called Primary Care Associates for patients not enrolled with it or billing purposes for services not covered by government funding ; and 

(3) bad faith is a required element of proof before a domain name can be cancelled or transferred. 

Respondent alleges that the Complainant's initation of this administrative proceeding constitutes «« reverse domain name hijacking , »» in light of Complainant's concession of lack of bad faith. 

Discussion and Findings 

Paragraph 4(a)(iii) of the ICANN Policy provides that : the complainant must prove that the «« domain name has been registered and is being used in bad faith. »» Clearly, complainant's concession regarding respondent's lack of bad faith in registering the domain name is an admission that complainant cannot prove the existence of bad faith. 

Thus I find that Complainant has not met its burden of proof of showing that the Respondent was registered and used in bad faith. 

The ICANN Rules do not state a burden of proof regarding reverse domain name hijacking. The only evidence that Respondent offers in support of its claim is the filing of the complaint. The mere filing of a complaint cannot be proof of bad faith; otherwise every unsuccessful domain name complaint would be subject to a finding of abuse of administrative process. In this case, moreover, Complainant's arguments regarding illegitimacy of the domain name use were colorable. 

Thus I find that Respondent has not demonstrated that Complainant has engaged in reverse domain name hijacking. 

Conclusions 

In conclusion, Complainant has not proven bad faith and therefore the Complaint must be rejected. Respondent has not proven reverse domain name hijacking, and thus the claim of abuse of administrative process must be rejected. 

Signature 

Seattle, WA USA 5/30/00
Margaret Chon
Presiding Panelist
 

Domain Name Not Transferred