Churchill Insurance Co. Ltd. v. Jennifer Bargerstock
Claim Number: FA1001001301884
Complainant is Churchill Insurance Co. Ltd. (“Complainant”), represented by James
A. Thomas, of Troutman Sanders LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <churchillhomevalues.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 7, 2010.
On January 7, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <churchillhomevalues.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 January 12, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 1, 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@churchillhomevalues.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 9, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <churchillhomevalues.info> domain name is confusingly similar to Complainant’s CHURCHILL mark.
2. Respondent does not have any rights or legitimate interests in the <churchillhomevalues.info> domain name.
3. Respondent registered and used the <churchillhomevalues.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Churchill
Insurance Co. Ltd., holds a trademark registration with the United Kingdom
Intellectual Property Office (“UKIPO”) for the CHURCHILL mark (Reg. No.
2,042,931 issued November 28, 1997) and with the European Union Office for
Harmonization in the Internal Market (“OHIM”) for the CHURCHILL mark (Reg. No.
822,916 issued June 17, 1999) in connection with insurance services, including
home insurance.
Respondent, Jennifer Bargerstock, registered the <churchillhomevalues.info> domain name on October 20, 2009. The disputed domain name resolves to a website displaying commercial links, including links to products and services that directly compete with Complainant.
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 asserts rights in its CHURCHILL mark through its
holding of a trademark registration of the CHURCHILL mark with the UKIPO (Reg. No. 2,042,931 issued November 28, 1997) and with
the OHIM (Reg. No. 822,916 issued June 17, 1999). The Panel finds that Complainant has
established rights in the CHURCHILL mark under Policy ¶ 4(a)(i) through its
trademark registration with the UKIPO and the OHIM. See
The Royal Bank of Scot. Group plc, Direct Line Ins. plc, &
Privilege Ins. Co. Ltd. v. Demand Domains, c/o C.S.C., FA 714952 (Nat.
Arb. Forum August 2, 2006) (holding that registration of the PRIVILEGE mark
with the
Complainant argues that Respondent’s <churchillhomevalues.info> domain name is confusingly similar to Complainant’s CHURCHILL mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name is confusingly similar to Complainant’s CHURCHILL mark because Respondent’s disputed domain name incorporates the entirety of Complainant’s mark and adds the generic phrase “home values” and the generic top-level domain (“gTLD”) “.info.” The Panel finds that the addition of the generic phrase “home values” creates a confusing similarity between Complainant’s mark and the disputed domain name, especially where, as here, it describes products and services offered by Complainant. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). The Panel also finds that the addition of a gTLD to a registered mark is irrelevant in distinguishing a disputed domain name and a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also 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.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. 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)). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Jennifer Bargerstock.”
Without evidence in the record to the contrary, the Panel finds that
Respondent is not commonly known by the disputed 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).
Respondent’s <churchillhomevalues.info> domain name was registered
on October 20, 2009. The disputed domain
name resolves to a website displaying commercial links, including links to
products and services that directly compete with Complainant. The Panel finds that Respondent is not using
the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶
4(c)(i) or making a legitimate noncommercial or fair use of the disputed domain
name pursuant to Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding
that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services
or a legitimate noncommercial or fair use by redirecting Internet users to a
commercial search engine website with links to multiple websites that may be of
interest to the complainant’s customers and presumably earning “click-through
fees” in the process); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent is using the disputed domain name to display commercial links, including links to products and services that directly compete with Complainant. The Panel finds Respondent’s use of the disputed domain name disrupts Complainant’s business, which constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
The Panel infers Respondent receives click-through fees displaying third-party links on the website resolving from the disputed domain name. Internet users, interested in Complainant and Complainant’s business, may become confused as to Complainant’s affiliation and sponsorship of the disputed domain name. The Panel finds Respondent’s use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also 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)).
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 <churchillhomevalues.info> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 23, 2010
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