Fireman's Fund Insurance Company v. Joshua Bolin
Claim Number: FA0901001243116
Complainant is Fireman's Fund Insurance Company (“Complainant”), represented by Gretchen
McCord Hoffman, of Wong, Cabello, Lutsch, Rutherford &
Brucculeri, L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <firemansfundinsurance.info>, registered with GoDaddy.com, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 12, 2009 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@firemansfundinsurance.info 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 <firemansfundinsurance.info> domain name is confusingly similar to Complainant’s FIREMAN’S FUND mark.
2. Respondent does not have any rights or legitimate interests in the <firemansfundinsurance.info> domain name.
3. Respondent registered and used the <firemansfundinsurance.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Fireman’s Fund Insurance Company, operates an
insurance company under its FIREMAN’S FUND mark. Complainant registered its FIREMAN’S FUND
mark with the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the disputed 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 has provided evidence of the registration of its
FIREMAN’S FUND mark with the USPTO, which the Panel finds establishes
Complainant’s rights in the mark under Policy ¶ 4(a)(i).
Complainant contends Respondent’s <firemansfundinsurance.info> domain name is confusingly
similar to its FIREMAN’S FUND mark. The
disputed domain name contains Complainant’s mark with the following
alterations: (1) the omission of an apostrophe; (2) the addition of the
descriptive term “insurance;” and (3) the addition of the generic top-level
domain (“gTLD”) “.info.” The Panel finds
these alterations do not distinguish the disputed domain name from
Complainant’s mark, and thus finds the <firemansfundinsurance.info>
domain name is confusingly similar to Complainant’s FIREMAN’S FUND mark under
Policy ¶ 4(a)(i). See Daddy’s Junky Music
Stores, Inc. v. Kausar, FA 140598
(Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent to prove otherwise. The Panel finds Complainant has presented an
adequate prima facie case to support
its allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain
name. The Panel, however, will examine
the record and determine if Respondent has rights or legitimate interests
pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that
the respondent has no rights or legitimate interests with respect to the
domain, the burden shifts to the respondent to provide “concrete evidence that
it has rights to or legitimate interests in the domain name at issue”); see also Broadcom Corp. v. Ibecom PLC,
FA 361190 (Nat. Arb. Forum
Complainant alleges Respondent is not commonly known by the disputed domain name. Complainant maintains it has never authorized Respondent to use its FIREMAN’S FUND mark in any manner. The WHOIS information lists Respondent as “Joshua Bolin.” Based on this information, the Panel finds Respondent is not commonly known by the <firemansfundinsurance.info> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <firemansfundinsurance.info>
domain name resolves to a website offering links to the websites of
Complainant’s competitors. The Panel
finds Respondent’s use of the disputed domain name is not indicative of 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 Skyhawke Techns., LLC v.
Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends Respondent’s use of the disputed domain
name disrupts Complainant’s business by directing Internet users to competing
websites. The Panel finds Respondent’s
use of the <firemansfundinsurance.info>
domain name does constitute disruption, which is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
Respondent presumably receives compensation in the form of
click-through fees for its use of the disputed domain name. The Panel finds this is an attempt by
Respondent to capitalize on the goodwill Complainant has established in its
FIREMAN’S FUND mark, which is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi,
FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged
in bad faith registration and use by using a domain name that was confusingly
similar to the complainant’s mark to offer links to third-party websites that
offered services similar to those offered by the complainant); see also
The Panel find Policy ¶ 4(b)(iv) 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 <firemansfundinsurance.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 3, 2009
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