Western Reserve Life Assurance Company of
Claim Number: FA0912001297718
Complainant is Western Reserve Life Assurance Company of Ohio (“Complainant”), represented by Bruce
A. McDonald, of Schnader Harrison Segal & Lewis LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <westernreservelife.com>, registered with Enom, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 8, 2009.
On December 7, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <westernreservelife.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 December 18, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 7, 2010 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@westernreservelife.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 20, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <westernreservelife.com> domain name is identical to Complainant’s WESTERN RESERVE LIFE mark.
2. Respondent does not have any rights or legitimate interests in the <westernreservelife.com> domain name.
3. Respondent registered and used the <westernreservelife.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Western Reserve
Life Assurance Company of
Respondent, Jet Stream
Enterprises Limited c/o Jet Stream, registered the <westernreservelife.com>
domain name on May 19, 2002. The
disputed domain name resolves to a website that displays hyperlinks to
third-party websites, some of which directly compete with Complainant. Respondent has been the respondent of several
UDRP proceedings resulting in the transfer of disputed domain names. See
e.g., The Knot, Inc. v. Jet Stream Enterprises Limited, FA 1288037 (Nat.
Arb. Forum Nov. 18, 2009); see also Mary
Kay Inc. v. Jet Stream Enterprises Limited, FA 1286672 (Nat. Arb. Forum
Nov. 12, 2009); see also Barry’s Ticket
Service, Inc. v. Jet Stream Enterprises Limited, FA 1270845 (Nat. Arb.
Forum Aug. 5, 2009).
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 a registration of the
WESTERN RESERVE LIFE mark with the USPTO (Reg.
No. 1,572,364 issued December 19, 1989).
The Panel finds that this evidence is sufficient for Complainant to
establish rights in the WESTERN RESERVE LIFE mark under Policy ¶ 4(a)(i). See Miller
Brewing
Respondent’s <westernreservelife.com> domain name contains Complainant’s entire WESTERN RESERVE LIFE mark, deletes the spaces within the mark, and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds, as previous panels have, that none of these alterations to Complainant’s mark sufficiently distinguishes the disputed domain name from Complainant’s mark. See Diesel v. LMN, FA 804924 (Nat. Arb. Forum Nov. 7, 2006) (finding <vindiesel.com> to be identical to complainant’s mark because “simply eliminat[ing] the space between terms and add[ing] the generic top-level domain (“gTLD”) ‘.com’ … [is] insufficient to differentiate the disputed domain name from Complainant’s VIN DIESEL mark under Policy ¶ 4(a)(i)”); see also Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that the <westernreservelife.com> domain name is identical to Complainant’s WESTERN RESERVE LIFE mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Upon making such a 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 now shifts to Respondent, from whom no response was received. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also 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).”). Although Respondent has not made any allegations that it has rights or legitimate interests in the disputed domain name, the Panel elects to examine the record under Policy ¶ 4(c).
The WHOIS information for the <westernreservelife.com> domain name lists “Jet Stream Enterprises Limited c/o Jet Stream” as the registrant, which does not indicate that Respondent is commonly known by the <westernreservelife.com> domain name. Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Moreover, Complainant asserts that it has not licensed or otherwise authorized Respondent to use the WESTERN RESERVE LIFE mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Respondent’s <westernreservelife.com> domain name resolves to website that displays hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel presumes that Respondent receives click-through fees from these hyperlinks. Therefore, the Panel finds that Respondent’s use of the disputed 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 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)); see also 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent of several UDRP
proceedings resulting in the transfer of disputed domain names. See
e.g., The Knot, Inc. v. Jet Stream Enterprises Limited, FA 1288037 (Nat.
Arb. Forum Nov. 18, 2009); see also Mary
Kay Inc. v. Jet Stream Enterprises Limited, FA 1286672 (Nat. Arb. Forum
Nov. 12, 2009); see also Barry’s Ticket
Service, Inc. v. Jet Stream Enterprises Limited, FA 1270845 (Nat. Arb.
Forum Aug. 5, 2009). Therefore, the
Panel finds that Respondent has engaged in bad faith registration and use under
Policy ¶ 4(b)(ii) with respect to the <westernreservelife.com> domain
name. See Westcoast Contempo Fashions Ltd. v.
Since Respondent registered the <westernreservelife.com> domain name on May 19, 2002, the
disputed domain name has resolved to a website that features hyperlinks to
third-party websites, some of which directly compete with Complainant. The Panel finds that Respondent’s use of the <westernreservelife.com> domain name
disrupts Complainant’s business. The
Panel further finds that such a disruption constitutes bad faith registration
and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain
Mgmt. Servs., FA 877982
(Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to
the websites of a complainant’s competitors represents bad faith registration
and use under Policy ¶ 4(b)(iii)); see
also Am. Airlines, Inc. v.
The Panel finds that Respondent’s use of the identical <westernreservelife.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 Respondent’s presumed receipt of click-through fees from the hyperlinks
displayed on the website resolving from the disputed domain name, which is
evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shoud be GRANTED.
Accordingly, it is Ordered that the <westernreservelife.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: February 3, 2010
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