Zander Insurance Agency, Inc. v.
Claim Number: FA0710001094232
Complainant is Zander Insurance Agency, Inc. (“Complainant”), represented by Chris
A. Sloan, of Boult, Cummings, Conners & Berry, PLC,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <zanderinsurance.org>, registered with Domain Contender, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On October 16, 2007, Domain Contender, LLC confirmed by e-mail to the National Arbitration Forum that the <zanderinsurance.org> domain name is registered with Domain Contender, LLC and that Respondent is the current registrant of the name. Domain Contender, LLC has verified that Respondent is bound by the Domain Contender, LLC 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 October 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 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.
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 <zanderinsurance.org> domain name is confusingly similar to Complainant’s ZANDER mark.
2. Respondent does not have any rights or legitimate interests in the <zanderinsurance.org> domain name.
3. Respondent registered and used the <zanderinsurance.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Zander Insurance Agency, Inc.,
has continuously used the ZANDER mark in connection with insurance brokerage
services since the 1920s. Complainant
owns a registration of the mark with the United State Patent and Trademark
Office (“USPTO”) (Reg. No. 3,255,315 issued
<zanderinsurance.org> domain name was registered 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 has sufficiently established its rights in the
ZANDER mark through registration with the USPTO dating back to the filing date
pursuant to Policy ¶ 4(a)(i). See
Respondent’s <zanderinsurance.org> domain name contains Complainant’s mark in its entirety and then includes the generic top-level domain (“gTLD”) “.com,” and the generic term “insurance,” which describes the services offered under Complainant’s mark. The inclusion of a gTLD and a generic term that describes a complainant’s business will not distinguish a disputed domain name. As a result, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See 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); 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).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. See VeriSign Inc. v. VeneSign
No Response has been submitted to the Complaint. As such, the Panel presumes that Respondent has no rights or legitimate interests in the disputed domain name but will nonetheless examine the record in light of the factors listed under Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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).”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).
Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the <zanderinsurance.org> domain name. Further, Complainant has never granted Respondent permission to use the ZANDER mark in anyway. Absent any evidence to the contrary, 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 Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
domain name contains Complainant’s mark in its entirety and resolves to a
website displaying a variety of links to third-parties that all offer insurance
services in direct competition with those offered under Complainant’s ZANDER
mark. The Panel finds this to be 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 Ameritrade Holdings Corp.
v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002)
(finding that the respondent’s use of the disputed domain name to redirect
Internet users to a financial services website, which competed with the
complainant, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
domain name resolves to a website featuring exclusively links to competitors of
Complainant. The Panel finds this to
establish Respondent’s bad faith registration and use of the disputed domain in
an attempt to disrupt Complainant’s business pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum
Respondent is presumed to commercially benefit from each misdirected Internet user to a competitor of Complainant through the use of “click-through” fees. The Panel finds this to be additional evidence of Respondent’s bad faith as an intent to commercially benefit from a confusingly similar domain name pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also 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).
Lastly, Respondent registered the <zanderinsurance.org> domain name the very next day after
Complainant had its ZANDER mark registration application officially filed with
the USPTO. Respondent’s registration is evidence
of Respondent’s opportunistic bad faith registration pursuant to Policy ¶ 4(a)(iii). See
Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that the
respondent’s registration of the <seveballesterostrophy.com> domain name
at the time of the announcement of the Seve Ballesteros Trophy golf tournament
“strongly indicates an opportunistic registration”); see also 3M Co. v. Jeong, FA 505494 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied 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 <zanderinsurance.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 30, 2007
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