Farmers Group, Inc. v. OOO Avtomonitoring
Claim Number: FA1905001841742
Complainant is Farmers Group, Inc. (“Complainant”), represented by Edwin Burgos, California, USA. Respondent is OOO Avtomonitoring (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <farmers-insurance.site>, registered with Regional Network Information Center, JSC dba RU-CENTER.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 3, 2019; the Forum received payment on May 3, 2019.
On May 7, 2019, Regional Network Information Center, JSC dba RU-CENTER confirmed by e-mail to the Forum that the <farmers-insurance.site> domain name is registered with Regional Network Information Center, JSC dba RU-CENTER and that Respondent is the current registrant of the name. Regional Network Information Center, JSC dba RU-CENTER has verified that Respondent is bound by the Regional Network Information Center, JSC dba RU-CENTER registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 29, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@farmers-insurance.site. Also on May 9, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 31, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Language of Proceeding
Complainant requests that this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Russian language Registration Agreement. Complainant argues that Respondent’s use of the English language on the resolving website indicates an understanding of the language. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Factors which previous panels have seen as relevant include evidence of Respondent’s understanding of the language of the Complaint. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Russian language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding shall be in English.
A. Complainant
Complainant states that it operates in the insurance services industry. Complainant and its affiliates serve more than 10 million households in the USA. Complainant has rights in the FARMERS INSURANCE mark based upon its registration of the mark in the United States in 2015; the mark was first used in 1939.
Complainant alleges that the disputed domain name is identical to its FARMERS INSURANCE mark because it wholly incorporates the mark, and merely adds a hyphen and the “.site” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s FARMERS INSURANCE mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use, instead the resolving website mimics Complainant’s official website and displays Complainant’s mark and logo.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to divert internet users for illegitimate or improper purposes. Respondent also registered and uses the disputed domain name in bad faith because Respondent had actual knowledge of Complainant’s FARMERS INSURANCE mark prior to registering the disputed domain name based on Respondent’s use of the mark on the resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark FARMERS INSURANCE, with rights dating back to at least 2015.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo.
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."
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.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name wholly incorporates Complainant’s mark, and merely adds a hyphen and the “.site” gTLD. The additions of a gTLD and hyphen as well as the deletion of a space do not sufficiently differentiate a disputed domain name enough to overcome a claim of identical or confusing similarity. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (“Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). Therefore, the Panel finds that the <farmers-insurance.site> domain name is identical to the Complainant’s FARMERS INSURANCE mark per Policy ¶4(a)(i).
Respondent is not authorized to use Complainant’s FARMERS INSURANCE mark and is not commonly known by the disputed domain name: where a response is absent, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information indicates that Respondent is known as “OOO Avtomonitoring.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website mimics Complainant’s official website and displays Complainant’s mark and logo. Thus, Respondent creates a likelihood of confusion. Such use does not evince rights and legitimate interests in a domain name. See State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Forum Sept. 27, 2000) (“[U]nauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”). Therefore, the Panel finds that Respondent‘s does not make a bona fide offering of goods or services or a legitimate non-commercial or fair use of the disputed domain name per Policy ¶¶ 4(c)(i) or (iii). In addition, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website mimics Complainant’s legitimate website and displays Complainant’s mark and logo. Thus, it disrupts Complainant’s business. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <farmers-insurance.site> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 31, 2019
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