IMT Services Corp. v. Hank c/o Billgates
Claim Number: FA0706001002627
Complainant is IMT Services Corp. (“Complainant”), represented by Fritz L. Schweitzer III, of Schweitzer Cornman Gross & Bondell LLP, 292 Madison Avenue, 19th Floor, New York, NY 10017. Respondent is Hank c/o Billgates (“Respondent”), Sonogoo 38499, Herocoto, Bingkaso 506-761, GL.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwinsuremytrip.com>, registered with Onlinenic, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 8, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 11, 2007.
On June 12, 2007, Onlinenic, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwinsuremytrip.com> domain name is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 9, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
Complainant is a well-known provider of insurance comparison services, insurance brokerage services and insurance agency services.
In furtherance of the provision of these services, Complainant has registered the INSUREMYTRIP.COM mark (Reg. No. 2,866,245, issued July 27, 2004) with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the offending domain name <wwwinsuremytrip.com> on December 12, 2004.
The disputed domain name resolves to a website featuring links to a series of third-party commercial websites, including some that offer services directly competing with the business of Complainant.
Respondent’s <wwwinsuremytrip.com> domain name is confusingly similar to Complainant’s INSUREMYTRIP.COM mark.
Respondent does not have any rights or legitimate interests in the domain name <wwwinsuremytrip.com>.
Respondent registered and uses the disputed domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of the INSUREMYTRIP.COM trademark with the USPTO sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.” See also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”
Respondent’s <wwwinsuremytrip.com> domain name incorporates Complainant’s mark in its entirety and merely eliminates the period after “www.” The disputed domain name is therefore confusingly similar to Complainant’s protected mark pursuant to Policy ¶ 4(a)(i). See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that a respondent’s domain name <wwwbankofamerica.com> is confusingly similar to a complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (finding confusing similarity established because the prefix “www” does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from a complainant's NEIMAN-MARCUS mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Where Complainant has made out a prima facie case in support of its allegations, the burden shifts to Respondent to set forth concrete evidence indicating that it has rights to or legitimate interests in its domain name in accordance with Policy ¶ 4(a)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with a respondent to demonstrate that it has rights or legitimate interests); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).
The assertions of Complainant are sufficient to establish a prima facie case for purposes of the Policy. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, as here, the assertion by a complainant that a respondent has no right or legitimate interest in its domain name is sufficient to shift the burden of proof to a respondent to demonstrate that such a right or legitimate interest does exist).
Complainant alleges that Respondent’s domain name resolves to a search engine website displaying links to commercial third-party websites, some of which offer services that directly compete with those offered by Complainant. Respondent does not deny this allegation. As a result, we are entitled to and do conclude that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed links, some of which resolved to that complainant’s competitors, was not a bona fide offering of goods or services); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that a respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
From a review of Respondent’s WHOIS registration information, it is apparent that the registrant of the <wwwinsuremytrip.com> domain name is “Hank c/o Bill Gates.” No other evidence exists in the record to indicate that Respondent is commonly known by the disputed domain name. We conclude from this that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003): “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.” See also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (reciting that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply).
Finally under this heading, we observe that the facts before us present a common-form case of typosquatting; i.e.: the intentional misspelling of words in the formation of a domain name with the intent to intercept and siphon off traffic from its intended destination by preying on Internet users who make common typing errors. Respondent’s typosquatting is itself evidence of a lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that a respondent’s domain name <wwwdinersclub.com>, a typosquatted version of a complainant’s DINERS CLUB mark, was evidence in and of itself that that respondent lacked rights or legitimate interests in a disputed domain name); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003):
Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
It is undisputed on the record before us that Respondent’s <wwwinsuremytrip.com> domain name resolves to a website featuring, inter alia, links to websites competing with the business of Complainant. Presumably, Respondent receives income, in the form of click-through advertising revenue, from its diversionary use of this domain name. The disputed domain name also creates a likelihood of confusion as to Complainant’s possible sponsorship or affiliation with the disputed domain name and related website. This is evidence of bad faith registration and use as contemplated in Policy ¶ 4(b)(iv). See Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where a respondent directed Internet users seeking a complainant’s site to its own website for commercial gain); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if a respondent profits from its diversionary use of a complainant's mark when a domain name resolves to commercial websites and that respondent fails to contest a complaint, it may be concluded that it is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
In addition, as indicated above, Respondent’s use of the disputed domain name indicates that Respondent has engaged in typosquatting, which is itself evidence of registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003):
Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <wwwinsuremytrip.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 23, 2007
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