State Farm Mutual Automobile Insurance Company v. Venerica Meat c/o Luis Gordones
Claim Number: FA0904001256583
Complainant is State Farm Mutual Automobile Insurance Company (“Complainant”), represented by Debra
J. Monke, of State Farm Mutual Automobile Insurance
Company,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <statefarmpopowichguixia.com>, registered with Netfirms, 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 April 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 11, 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@statefarmpopowichguixia.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 <statefarmpopowichguixia.com> domain name is confusingly similar to Complainant’s STATE FARM mark.
2. Respondent does not have any rights or legitimate interests in the <statefarmpopowichguixia.com> domain name.
3. Respondent registered and used the <statefarmpopowichguixia.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, State Farm Mutual Automobile Insurance Company,
is the owner of numerous trademarks, including the STATE FARM mark registered
with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No.
1,979,585, issued
Respondent registered the <statefarmpopowichguixia.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.
The Panel finds that Complainant has established rights in
the STATE FARM mark based on its registration of the mark with the USPTO under
Policy ¶ 4(a)(i).
See Expedia, Inc.
v. Tan, FA 991075 (Nat. Arb. Forum
Respondent’s domain
name incorporates Complainant’s entire STATE FARM mark, which is the dominant
feature of the disputed domain name. The
addition of nonsensical terms, lacking a distinguishing purpose, is not enough
to alleviate the confusing similarity between the disputed domain name and
Complainant’s STATE FARM mark. Also, the
addition of the top-level domain name “.com” is irrelevant—its addition fails
to alleviate the confusing similarity between the disputed domain name and
Complainant’s mark. Thus, the Panel
finds that Respondent’s domain name is confusingly similar to Complainant’s
mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001)
(“[T]he fact that a domain name wholly incorporates a Complainant’s registered
mark is sufficient to establish identity [sic] or confusing similarity for
purposes of the Policy despite the addition of other words to such marks”); see also;
Arthur Guinness Son & Co.
(Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding
confusing similarity where the domain name in dispute contains the identical
mark of the complainant combined with a generic word or term); see also
Pomellato S.p.A v. Tonetti,
D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name POMELLATO is not relevant)
Complainant has satisfied Policy ¶4(a)(i).
Complainant alleges that Respondent does not have any rights or legitimate interests in the <statefarmpopowichguixia.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)). Due to Respondent’s failure to respond to the Complaint, the Panel may infer that Respondent does not have rights or legitimate interests in the disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). The Panel finds that Complainant has presented a prima facie case, and the Panel now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <statefarmpopowichguixia.com>
domain
name. Complainant asserts that
Respondent has no legitimate connection or authorization to use the STATE FARM
mark. According to Respondent’s WHOIS
information, the disputed domain name was registered to “Venerica Meat c/o Luis
Gordones.” Thus, Respondent is not
commonly known by the <statefarmpopowichguixia.com> domain name
pursuant to Policy ¶ (4)(c)(ii). See
M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the
respondent was not commonly known by the <cigaraficionada.com> domain
name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence
in the record); 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).
Complainant has satisfied Policy ¶4(a)(ii).
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that is not limited to the enumerated factors in Policy ¶
4(b). See Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO
The Panel finds that Respondent’s use of Complainant’s STATE FARM mark in the <statefarmpopowichguixia.com> domain name, with no active use of the website resolving from the disputed domain name, constitutes bad faith and use under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”).
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 <statefarmpopowichguixia.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 2, 2009
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