FBL Financial Group, Inc. v. Juan Peneron and srvs4you
Claim Number: FA0802001143822
Complainant is FBL Financial Group, Inc. (“Complainant”), represented by Camille
L. Urban, of Brown Winick Law Firm,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <equitrust.org>, registered with OnlineNIC.
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.
James A.Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 11, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 11, 2008.
On February 12, 2008, OnlineNIC confirmed by e-mail to the National Arbitration Forum that the <equitrust.org> domain name is registered with OnlineNIC and that Respondent is the current registrant of the name. OnlineNIC has verified that Respondent is bound by the OnlineNIC 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 February 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 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@equitrust.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 24, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary as Panelist.
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 <equitrust.org> domain name is identical to Complainant’s EQUITRUST mark.
2. Respondent does not have any rights or legitimate interests in the <equitrust.org> domain name.
3. Respondent registered and used the <equitrust.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, FBL Financial Group, Inc., is a company that provides a variety of financial products and services, including loan products. Complainant offers these products and services through its EQUITRUST mark. Complainant registered its EQUITRUST mark with the United States Patent and Trademark Office (“USPTO”) on June 1, 1999 (Reg. No. 2,250,530).
Respondent registered the <equitrust.org> domain name on November 2, 2007. Respondent’s disputed domain name resolves to a website which purportedly offers financial loan services to Internet users. As part of the loan application process Respondent requires Internet users to provide a “collateral payment,” as an attempt to defraud consumers applying for its loans.
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 registered its EQUITRUST mark with the USPTO on
June 1, 1999. The Panel finds this
registration is sufficient to establish Complainant’s rights in the EQUITRUST
mark pursuant to Policy ¶ 4(a)(i). See
Smart Design LLC v. Hughes, D2000-0993 (WIPO Oct. 18, 2000) (holding
that ICANN Policy ¶ 4(a)(i) does not require the complainant to demonstrate
‘exclusive rights,’ but only that the complainant has a bona fide basis
for making the complaint in the first place); see also U.S. Office of Pers. Mgmt. v.
MS Tech. Inc., FA 198898 (Nat. Arb. Forum
Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is
registrable, by so issuing a registration, as indeed was the case here, an
ICANN panel is not empowered to nor should it disturb that determination.”).
Respondent’s <equitrust.org> domain name fully incorporates Complainant’s EQUITRUST mark with the mere addition of the generic top-level domain (“gTLD”) “.org.” The addition of a gTLD is required for every domain name and thus it is irrelevant for the purposes of evaluating whether a disputed domain name is identical to a mark under Policy ¶ 4(a)(i). Therefore, the Panel finds Respondent’s <equitrust.org> domain name is identical to Complainant’s EQUITRUST mark pursuant to Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) ( “[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also Koninklijke Philips Elecs. NV v. Goktas, D2000-1638 (WIPO Feb. 8, 2001) (finding that the domain name <philips.org> is identical to the complainant’s PHILIPS mark).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed domain name. Once Complainant presents a prima facie case supporting these
allegations, the burden shifts to Respondent to establish it does have rights or
legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). The Panel
finds Complainant has presented a sufficient prima facie case to support its allegations. Respondent failed to submit a response to
these proceedings. Therefore, the Panel
may assume Respondent does not have rights or legitimate interests in the
disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel will inspect the record
and determine whether Respondent has rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(c). See 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).”); see also Vanguard Group, Inc. v.
Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because
Respondent failed to submit a Response, “Complainant’s submission has gone
unopposed and its arguments undisputed.
In the absence of a Response, the Panel accepts as true all reasonable
allegations . . . unless clearly contradicted by the evidence.”).
Respondent is using the <equitrust.org> domain name in order to “pass itself off” as Complainant and operate loan services, which directly compete with Complainant’s business. Additionally, it appears Respondent is using the disputed domain name to defraud potential customers by requiring them to provide monetary collateral as part of the loan application process. The Panel finds Respondent’s use of the disputed domain name is not a use in connection with 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 Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); 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); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
In addition, the record and WHOIS information provide no evidence suggesting that Respondent is commonly known by the <equitrust.org> domain name. Respondent is listed in the WHOIS information as “Juan Peneron and srvrs4you.” Furthermore, the record indicates Respondent was not authorized to use Complainant’s EQUITRUST mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name and thus has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <equitrust.org> domain name, which is confusingly similar to Complainant’s EQUITRUST mark, to defraud customers by passing itself of as Complainant. Respondent’s disputed domain name resolves to a website that offers loan services which mimicks Complainant’s. The Panel finds such use constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”); 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).
Also, Respondent is using the disputed domain name to offer
loan services which compete with Complainant.
The Panel finds this use constitutes disruption and is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iii). See
S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July
18, 2000) (finding that the respondent registered the domain name in question to
disrupt the business of the complainant, a competitor of the respondent); see also
In addition, the Panel finds Respondent’s use of the <equitrust.org> domain name
constitutes registration and use in bad
faith pursuant to Policy ¶ 4(b)(iv) because it is
confusingly similar to Complainant’s website and Respondent is attempting to
profit by offering services which compete with Complainant’s and defrauding
Internet users who provide a loan collateral payment as part of their loan
application. Respondent is attempting to
use the recognition Complainant built up in its EQUITRUST mark in order to lure
Internet users into providing Respondent with money. See
Perot Sys. Corp.
v. Perot.net, FA 95312 (Nat. Arb.
Forum Aug. 29, 2000) (finding bad faith where the domain name in question is
obviously connected with the complainant’s well-known marks, thus creating a
likelihood of confusion strictly for commercial gain); see also HOPE
worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding
that the respondent registered and used the domain name in bad faith because it
redirected Internet users to a website that imitated the complainant’s website
and was used to fraudulently acquire personal information from the
complainant’s potential associates).
The Panel finds 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 <equitrust.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: April 3, 2008
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