SELECTIVE INSURANCE GROUP, INC. v. Tiffany Clarke / selectlve.com
Claim Number: FA2206002000398
Complainant is SELECTIVE INSURANCE GROUP, INC. ("Complainant"), represented by Stephen P. McNamara of St. Onge Steward Johnston & Reens LLC, Connecticut, USA. Respondent is Tiffany Clarke / selectlve.com ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <selectlve.com>, registered with Google LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 15, 2022; the Forum received payment on June 15, 2022.
On June 15, 2022, Google LLC confirmed by email to the Forum that the <selectlve.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 June 20, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@selectlve.com. Also on June 20, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 July 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 and its affiliated companies have provided insurance and related services under the SELECTIVE mark since 1985. Complainant owns various United States trademark registrations for the mark in standard character form and otherwise.
Respondent registered the disputed domain name <selectlve.com> in May 2022. The domain name was registered in the name of a privacy registration service. The underlying registration data provided to the registrar included the name of Tiffany Clarke, one of Complainant's actual employees, with false and incomplete contact information. The domain name has been used to pass off as Complainant in email messages sent to one or more customers of Complainant, purporting to be from Complainant's employee, attempting to divert a premium payment from the customer to an account controlled by Respondent. Complainant states that Respondent is not commonly known by the domain name, has no relationship with Complainant, and has not been permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <selectlve.com> is confusingly similar to its SELECTIVE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <selectlve.com> corresponds to Complainant's registered SELECTIVE trademark, substituting a letter "L" for the "I" and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Carnival Corp. v. Bernard Christianctus, FA 1982390 (Forum Feb. 28, 2022) (finding <carnlval.com> confusingly similar to CARNIVAL); SELECTIVE INSURANCE GROUP, INC. v. Gregory Murphy, FA 1714649 (Forum Mar. 7, 2017) (finding <selectivegroups.com> confusingly similar to SELECTIVE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization and its sole apparent use has been to impersonate Complainant and one of its employees in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Carnival Corp. v. Bernard Christianctus, supra (finding lack of rights or interests in similar circumstances); Xerox Corp. v. Name Redacted, FA 1955388 (Forum Aug. 16, 2021) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service and false underlying registration data to register a domain name corresponding to Complainant's registered mark, but for a typographical substitution, and is using the domain name in connection with a fraudulent phishing scheme. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Carnival Corp. v. Bernard Christianctus, supra (finding bad faith in similar circumstances); Xerox Corp. v. Name Redacted, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <selectlve.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 13, 2022
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