Metropolitan Life Insurance Company v. David Curran Clark
Claim Number: FA0801001126352
Complainant is Metropolitan Life Insurance Company (“Complainant”), represented by Katherine
L.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <metlife-autoinsurance.com>, registered with Melbourne It, Ltd. d/b/a Intern.
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
On January 21, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 11, 2008 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@metlife-autoinsurance.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 <metlife-autoinsurance.com> domain name is confusingly similar to Complainant’s METLIFE mark.
2. Respondent does not have any rights or legitimate interests in the <metlife-autoinsurance.com> domain name.
3. Respondent registered and used the <metlife-autoinsurance.com> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant, Metropolitan Life Insurance Company, provides
insurance, annuities, pension fund, residential and commercial mortgage,
lending, real estate brokerage and management
services. Complainant provides life
insurance under its METLIFE mark.
Complainant registered the METLIFE mark with the United States Patent
and Trademark Office (“USPTO”) on
Respondent registered the <metlife-autoinsurance.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.
By registering the METLIFE mark with the USPTO, Complainant
has established rights to the mark pursuant to Policy ¶ 4(a)(i). See
Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002)
("Panel decisions have held that registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently
distinctive."); see also Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum
The <metlife-autoinsurance.com> domain
name is confusingly similar to the METLIFE mark under Policy ¶ 4(a)(i). First, the
disputed domain name incorporates the entire METLIFE mark, and therefore
establishes similarity under Policy ¶ 4(a)(i). The panel in Oki Data Ams., Inc. v. ASD,
Inc., D2001-0903 (WIPO
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant asserts that Respondent cannot demonstrate any
rights or legitimate interests in the <metlife-autoinsurance.com>
domain name, sufficient to make a prima
facie case under Policy ¶ 4(a)(ii). Therefore, the burden shifts to Respondent to
show that it does have rights or legitimate interests in the disputed domain
name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com,
D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the
mere assertion by the complainant that the respondent has no right or
legitimate interest is sufficient to shift the burden of proof to the
respondent to demonstrate that such a right or legitimate interest does exist);
see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Based on Respondent’s failure to respond to the Complaint,
the Panel may presume that Respondent lacks all rights and legitimate interests
in the <metlife-autoinsurance.com>
domain name, but will consider all evidence in the record under Policy ¶ 4(c)
before making its conclusion. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb.
Forum
Complainant has not granted a license or authorization
allowing Respondent to use the METLIFE mark.
The WHOIS information does not show that Respondent is commonly known by
the disputed domain name, instead listing the registrant as “David Curran
Clark.” The Panel therefore concludes
that Respondent is not commonly known by the disputed domain name under Policy
¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) the respondent is not a licensee of
the complainant; (2) the complainant’s prior rights in the domain name precede
the respondent’s registration; (3) the respondent is not commonly known by the
domain name in question); see also
Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
Respondent is using the disputed domain name to acquire
information from Internet users and Complainant’s potential customers. The panel in HOPE
worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum
Moreover, after Internet users provide personal information, the website that resolves from the <metlife-autoinsurance.com> domain name displays links to unrelated third-party websites and redirects Internet users to a list of Complainant’s competitors. The Panel concludes that diverting Complainant’s potential customers to a website that directly competes with Complainant’s services is also not 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). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also 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).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
The Panel finds that Respondent’s use of the disputed domain name to display links to unrelated third-party websites and to direct Internet users to a listing of Complainant’s competitors evidences registration and use in bad faith under Policy ¶ 4(b)(iv). The Panel infers that Respondent is commercially benefiting by receiving compensation for redirecting Internet users to unrelated and competing websites. Furthermore, because of the similarity between the <metlife-autoinsurance.com> domain name and the METLIFE mark, Respondent’s use of the disputed domain name is capable of creating confusion as to the source, sponsorship, affiliation, or endorsement of the website that resolves from the disputed domain name and the information therein. In G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002), the panel found that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website. Likewise, here, the Panel concludes that Respondent’s use is evidence of registration and use in bad faith under Policy ¶ 4(b)(iv). See also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Because Respondent also lists links to competing services,
the Panel finds that Respondent registered the disputed domain name with the
intent of disrupting Complainant’s business under Policy ¶ 4(b)(iii). See S. Exposure
v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the
respondent acted in bad faith by attracting Internet users to a website that
competes with the complainant’s business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Moreover, previous panels have concluded that acquiring personal information from Internet users, a tactic known as “phishing,” demonstrates registration and use in bad faith. Here, the Panel concludes that Respondent’s use of the disputed domain name to collect personal information is evidence of registration and use in bad faith under Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <metlife-autoinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 29, 2008
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