Ameritas Life Insurance Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2204001993057
Complainant is Ameritas Life Insurance Corp. (“Complainant”), represented by Maya Smith, Michigan, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ameritaz.com>, registered with GoDaddy.com, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 20, 2022; the Forum received payment on April 20, 2022.
On April 21, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ameritaz.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 April 25, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 2022 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@ameritaz.com. Also on April 25, 2022, 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 23, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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" 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.
A. Complainant
Complainant, Ameritas Life Insurance Corp, offers insurance and financial services. Complainant has rights in the AMERITAS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,481,882 registered March 22 1988). Respondent’s <ameritaz.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the AMERITAS mark in its entirety, adds the “.com” generic top-level domain (“gTLD”), and deletes the letter “s” and replaces it with the letter “z”.
Respondent has no legitimate interests in the <ameritaz.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the AMERITAS mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves a page with various links related to Complainant’s business. Respondent purports to be affiliated with Complainant and has engaged in typosquatting.
Respondent registered and uses the <ameritaz.com> domain name in bad faith. Respondent registered the disputed domain name to pass itself off as affiliated with Complainant and divert customers for commercial gain. Respondent registered the disputed domain name to participate in typosquatting. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the AMERITAS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <ameritaz.com> domain name.
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”).
Complainant asserts rights in the AMERITAS mark based upon the registration with the USPTO (e.g., Reg. No. 1,481,882 registered March 22,1988). Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of registration of the AMERITAS mark with the USPTO. The Panel finds that the Complainant has rights in the mark under Policy 4(a)(i).
Complainant argues Respondent’s <ameritaz.com> domain name is identical or confusingly similar to Complainant’s AMERITAS mark. The addition of a gTLD and the replacement of one letter with another fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See WordPress Foundation v. Bernat Lubos, FA 1613444 (Forum May 21, 2015) (finding that the <worspress.org> domain name is confusingly similar to the WORDPRESS mark under Policy ¶ 4(a)(i), stating, “On a standard QWERTY keyboard, the letters ‘s’ and ‘d’ are adjacent. A minor misspelling is not normally sufficient to distinguish a disputed domain name from a complainant’s mark.”). See also Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Complainant contends that <ameritaz.com> is confusingly similar to the AMERITAS mark because it contains the AMERITAS mark in its entirety while adding in the “.com”gTLD and replacing the letter “s” with the letter “z”. The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). The Panel finds that Complainant has made a prima facie case.
Complainant contends that Respondent lacks rights or legitimate interests in the <ameritaz.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the AMERITAS mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sept. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information for the disputed domain name lists the registrant as “Carolina Rodrigues/Fundacion Comercio Electronico”. Complainant asserts it has not licensed or otherwise authorized Respondent to use Complainant’s AMERITAS mark. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <ameritaz.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Where the Respondent uses a domain to redirect users to competing services, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”). Complainant contends that the disputed domain name resolves to a page displaying links related to the goods and services associated with Complainant in order to pass Respondent off as affiliated with Complainant. The Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
Complainant argues that, because the domain includes only the mark while adding and deleting letters to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated its lack of rights or legitimate interests in Complainant’s mark. Typosquatting is generally not considered evidence of rights or legitimate interests in a domain name under Policy ¶ 4(a)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum April 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). See also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”). The <ameritaz.com> domain name replaces the letter “s” with the letter “z,” in the AMERITAS mark. The Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name, per Policy ¶ 4(a)(ii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <ameritaz.com> domain name in bad faith because Respondent attempts to take advantage of confusion with Complainant’s mark to attract Internet users to its competing website for commercial gain. Use of a domain name that is confusingly similar to an established mark to redirect to competing/similar links can be evidence of a bad faith attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). See also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Complainant argues that Respondent is attempting to profit off of the goodwill associated with the AMERITAS mark by using a confusingly similar domain name that resolves to a page containing links to services associated with those provided by Complainant. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant argues that Respondent had actual knowledge of Complainant's rights in the AMERITAS mark when registering the disputed domain name. Actual knowledge of Complainant's mark and rights is evidence that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Complainant argues that Respondent's offering of links related to the services provided by Complainant at the resolving website indicates that Respondent had actual knowledge of Complainant's mark and rights. Additionally, Complainant contends that its prior use of the AMERITAS mark on the Internet and the goodwill associated with that mark indicates that Respondent had actual knowledge of Complainant’s rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name which is evidence of bad faith under Policy ¶ 4(a)(iii).
Complainant argues that, because the domain includes only the mark while adding and deleting letters to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated bad faith registration and use. Typosquatting may be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Twitter, Inc. v. Domain Admin, FA1503001607451 (Forum Apr. 2, 2015) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark when searching for the mark’s associated products or services. In doing so the wayward Internet users are directed to a web presence controlled by the domain name’s registrant where their accidental visits may be exploited. Respondent simply changes a single letter in Complainant’s trademark before incorporating the mark into the at-issue domain name. Respondent’s typosquatting is evidence of Policy ¶ 4(a)(iii) bad faith.”). The <ameritaz.com> domain name is an example of typosquatting. The Panel finds that Respondent registered and uses the disputed domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <ameritaz.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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