Ameriprise Financial, Inc. v. Keyword Marketing, Inc.
Claim Number: FA0710001092255
Complainant is Ameriprise Financial, Inc. (“Complainant”), represented by David
G. Barker, of Snell & Wilmer L.L.P., One Arizona
Center, 400 E. Van Buren, Phoenix, AZ 85004-2202. Respondent is Keyword Marketing, Inc. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <riversourcelifeinsurance.com>, registered with Capitoldomains, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 5, 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 postmaster@riversourcelifeinsurance.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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:
1. Respondent’s <riversourcelifeinsurance.com> domain name is confusingly similar to Complainant’s RIVERSOURCE mark.
2. Respondent does not have any rights or legitimate interests in the <riversourcelifeinsurance.com> domain name.
3. Respondent registered and used the <riversourcelifeinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ameriprise Financial, Inc.,
is a leader in the financial services industry.
Complainant has a history of more than 110 years throughout the
Respondent registered the <riversourcelifeinsurance.com>
domain name on
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 the 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:
(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.
Complainant attempts to establish rights in the RIVERSOURCE
mark through registration of the mark with the USPTO. The Panel, in light of Complainant’s timely
registration and subsequent use of the RIVERSOURCE mark, finds that Complainant
has sufficiently established rights in the RIVERSOURCE mark pursuant to Policy
¶ 4(a)(i). See ESPN, Inc. v. MySportCenter.com,
FA 95326 (Nat. Arb. Forum
Respondent’s <riversourcelifeinsurance.com> domain name contains Complainant’s protected RIVERSOURCE mark in its entirety and adds the generic terms “life” and “insurance,” which obviously relates to Complainant’s life insurance business, as well as the generic top-level domain (“gTLD”) “.com.” The Panel therefore finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
After the application of due diligence and in recognition of the factors related to satisfying UDRP Policy, the Panel finds that the requirements of Policy ¶ 4(a)(i) have been sufficiently met.
In instances where Complainant has made a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
indicating that it has rights or legitimate interests in accordance with Policy
¶ 4(a)(ii). See
SEMCO Prods., LLC v. dmg world media (
Respondent’s disputed domain name resolves to a website
featuring links to competing websites.
The Panel finds 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 Expedia,
Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s
use of the <expediate.com> domain name to redirect Internet users to a
website featuring links to travel services that competed with the complainant
was not a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii)); see also Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006)
(finding that the respondent’s use of domain names confusingly similar to the
complainant’s WAL-MART mark to divert Internet users seeking the complainant’s
goods and services to websites competing with the complainant did not constitute
a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy
¶ 4(c)(iii)).
After completing a
perlustration of Respondent’s WHOIS registration information, the Panel has
discovered that the registrant of the <riversourcelifeinsurance.com>
domain name is “Keyword Marketing, Inc.”
In light of this evidence and with due consideration to Respondent’s
failure to submit any documentation related to this proceeding, the Panel finds
that Respondent is not commonly known by the disputed domain name pursuant to
Policy ¶ 4(c)(ii). See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
After the application of due diligence and in recognition of the factors related to satisfying UDRP Policy, the Panel finds that the requirements of Policy ¶ 4(a)(ii) have been sufficiently met.
As indicated above, Respondent’s disputed domain name
resolves to a website offering links to competing websites. As a result, the Panel finds that
Respondent’s use constitutes a disruption of Complainant’s business pursuant to
Policy ¶ 4(b)(iii).
See Tesco Pers.
Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a website containing commercial links to the websites
of the complainant’s competitors represented bad faith registration and use
under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith
registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the
disputed domain name to operate a commercial search engine with links to the
complainant’s competitors).
The Panel, upon reflection and belief, finds that commercial enterprises such as the kind engaged in by Respondent, necessarily implies some procurement of financial gain. In the present case, such remuneration likely takes the form of click-through advertising fees. The Panel finds that Respondent’s use is violative of Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting from click-through fees).
After the application of due diligence and in recognition of the factors related to satisfying UDRP Policy, the Panel finds that the requirements of Policy ¶ 4(a)(iii) have been sufficiently met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <riversourcelifeinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: November 20, 2007
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