State Farm Mutual Automobile Insurance Company v. M Baumgartner c/o N/A
Claim Number: FA0910001291284
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 <statefram.com>, registered with Lead Networks Domains Pvt. Ltd.
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 October 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 19, 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@statefram.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 <statefram.com> domain name is confusingly similar to Complainant’s STATE FARM mark.
2. Respondent does not have any rights or legitimate interests in the <statefram.com> domain name.
3. Respondent registered and used the <statefram.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, State Farm
Mutual Automobile Insurance Company, engages in business in the insurance and the financial services
industries. Complainant began conducting
business under the STATE FARM mark in 1930 and has continually used the mark
since that time. Complainant holds a
registration of the STATE FARM mark with the United States Patent and Trademark
Office (“USPTO”) (Reg. No. 1,979,585 issued June 11, 1996).
Respondent, M Baumgartner c/o
N/A, registered the <statefram.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.
Complainant has supplied the Panel with evidence of its
USPTO registration for the STATE FARM mark (Reg.
No. 1,979,585 issued June 11, 1996). The
Panel finds, as previous panels have so found, that Complainant’s USPTO
registration sufficiently establishes rights in the STATE FARM mark under
Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat.
Arb. Forum
Respondent’s <statefram.com>
domain name contains a common misspelling of Complainant’s STATE FARM mark,
i.e., the letters “a” and “r” in the mark are transposed. Also, Respondent adds the generic top-level
domain (“gTLD”) “.com” to the altered STATE FARM mark. The Panel finds that the <statefram.com> domain name is
confusingly similar to Complainant’s STATE FARM mark because neither the
misspelling of Complainant’s mark nor the addition of a gTLD sufficiently
distinguishes the disputed domain name from Complainant’s mark. See Google
Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding
<googel.com> to be confusingly similar to the complainant’s GOOGLE mark
and noting that “[t]he transposition of two letters does not create a distinct
mark capable of overcoming a claim of confusing similarity, as the result
reflects a very probable typographical error”); see also Jerry Damson, Inc. v. Tex.
Int’l Prop. Assocs., FA 916991 (Nat.
Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Initially, Complainant must make a prima facie showing that Respondent lacks rights and legitimate
interests in the disputed domain
name. Once Complainant makes this
showing, the burden then shifts to Respondent and Respondent must establish
that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has
sufficiently made its prima facie
showing under Policy ¶ 4(a)(ii). The
burden has now shifted to Respondent, from whom no response was received. See Intel Corp. v. Macare, FA 660685
(Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima
facie case that [the] respondent lacks rights and legitimate interests in
the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts
to [the] respondent to show it does have rights or legitimate interests.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Respondent is listed in the WHOIS information as “M Baumgartner c/o N/A,” which does not indicate
that Respondent is commonly known by the <statefram.com>
domain name. Respondent has not offered any evidence to suggest
that Policy ¶ 4(c)(ii) applies in this case.
Moreover, Complainant contends that it has not licensed or otherwise
authorized Respondent to use the STATE FARM mark. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the
respondent was not commonly known by the <lilpunk.com> domain name as
there was no evidence in the record showing that the respondent was commonly
known by that domain name, including the WHOIS information as well as the
complainant’s assertion that it did not authorize or license the respondent’s
use of its mark in a domain name); see
also M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
The <statefram.com> domain name resolves to a website that features hyperlinks to third-party websites, some of which directly compete with Complainant’s insurance services business. The Panel presumes that Respondent receives click-through fees for these hyperlinks. Accordingly, the Panel finds that Respondent’s use of the <statefram.com> domain name is 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be 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)).
Respondent’s <statefram.com>
domain name contains a common
misspelling of Complainant’s STATE FARM mark.
Complainant alleges and the Panel finds that Respondent is engaging
typosquatting because Respondent is taking advantage of a common misspelling of
Complainant’s mark through its presumed receipt of click-through fees. The Panel further finds that Respondent’s
engagement in typosquatting is further evidence that it lacks rights and legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Since Respondent registered the <statefram.com> domain
name on
Furthermore, the Panel finds that Respondent’s use of the
confusingly similar <statefram.com>
domain name creates a likelihood of
confusion as to Complainant’s affiliation with the disputed domain name. The Panel further finds that Respondent is
commercially gaining from this likelihood of confusion through its presumed
receipt of click-through fees, which constitutes bad faith registration and use
under Policy ¶ 4(b)(iv). See T-Mobile
USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of
a domain name confusingly similar to a complainant’s mark to direct Internet
traffic to a commercial “links page” in order to profit from click-through fees
or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Univ. of
Finally, the Panel
finds that Respondent’s aforementioned engagement in typosquatting is
further evidence of bad faith registration and use under Policy ¶
4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat.
Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has
registered and used the <vangard.com> domain name in bad faith pursuant
to Policy ¶ 4(a)(iii).”); see also Computerized Sec. Sys., Inc. v. Hu,
FA 157321 (Nat. Arb. Forum
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 <statefram.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: December 8, 2009
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