Pacific Life Insurance Company and Pacific Life & Annuity Company v. Eva Renteria
Claim Number: FA1003001313535
Complainant is Pacific Life Insurance Company and Pacific
Life & Annuity Company (“Complainant”), represented by Julia C. McKinney,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pacificlife.mobi>, 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 March 16, 2010.
On March 16, 2010, GoDaddy.com, Inc confirmed by e-mail to the National Arbitration Forum that the <pacificlife.mobi> 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 March 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@pacificlife.mobi. Also on March 22, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 15, 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" through submission of a Written Notice, as defined in Rule 1. 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 <pacificlife.mobi> domain name is identical to Complainant’s PACIFIC LIFE mark.
2. Respondent does not have any rights or legitimate interests in the <pacificlife.mobi> domain name.
3. Respondent registered and used the <pacificlife.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Pacific Life Insurance Company and its wholly owned subsidiary Pacific Life & Annuity Company will be collectively referred to as Complainant, has registered its PACIFIC LIFE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,168,494 issued September 1, 1997). Complainant uses the mark in connection with providing life insurance, annuities, mutual funds, and various investment products and services to individuals, businesses, and pension plans. Complainant operates numerous domain names related to its marks including but not limited to the <pacificlife.com> and <pacificlifeandannuity.com> domain names, established in 1996 and 1999, respectively.
Respondent, Eva Renteria, registered the disputed domain name on June 13, 2007. The disputed domain name resolves to a web directory of third-party links that include competitors of 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 has provided evidence that it registered
its PACIFIC LIFE mark with the USPTO (Reg. No. 2,168,494 issued September 1,
1997). The Panel finds that Complainant’s registration of its PACIFIC LIFE mark
with the USPTO is sufficient to establish Complainant’s rights in the mark
pursuant to Policy ¶ 4(a)(i). See Morgan Stanley v.
Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from
a preponderance of the evidence that the complainant had registered its mark
with national trademark authorities, the Panel determined that “such
registrations present a prima facie
case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”); see
also UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17,
2007) (finding “no difficulty” in holding that the complainant had established
rights in its asserted marks for the purposes of Policy ¶ 4(a)(i) through its
trademark registrations with the USPTO).
Complainant contends that Respondent’s <pacificlife.mobi> domain name is
identical to Complainant’s PACIFIC LIFE mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains Complainant’s mark in
its entirety, with the only modifications being the omission of the space
between the terms of the mark and the affixation of the top-level domain
“.mobi.” The Panel finds these alterations are insufficient to negate a finding
of identicality under Policy ¶ 4(a)(i). See Bond & Co.
Jewelers, Inc. v.
The Panel determines that
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case in support of this, the burden to establish that Respondent has rights or legitimate interests in the disputed domain name shifts to the Respondent, pursuant to Policy ¶ 4(a)(ii). Based on the allegations made in the Complaint, the Panel finds Complainant has established a prima facie case, thus shifting the burden to the Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in 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 G.D. Searle v Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“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).”).
Complainant contends that Respondent is not commonly known by the disputed domain name. The WHOIS information does not indicate that Respondent is commonly known by the <pacificlife.mobi> domain name, and Respondent has not offered any affirmative evidence to suggest otherwise. Further, Complainant asserts no license or other authorization has been given to Respondent to use the PACIFIC LIFE mark. Therefore, the Panel finds these facts, together with the absence of information to the contrary, establishes the conclusion 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 Foot Locker Retail, Inc. v. Gibson, FA 139693 (Nat. Arb. Forum Feb. 4, 2003) (“Due to the fame of Complainant’s FOOT LOCKER family of marks . . . and the fact that Respondent’s WHOIS information reveals its name to be ‘Bruce Gibson,’ the Panel infers that Respondent was not ‘commonly known by’ any of the disputed domain names prior to their registration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”).
The disputed domain name resolves to a web directory of commercial third-party links that include competitors of Complainant. The Panel finds that Respondent’s use of the <pacificlife.mobi> 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 Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel determines that
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends Respondent is using the disputed domain
name to operate a web directory that contains links to third-party websites
that compete with the Complainant. The Panel finds Respondent’s use of the
identical disputed domain name constitutes a disruption of Complainant’s
business and qualifies as bad faith registration and use pursuant to Policy ¶
4(b)(iii). Bank of Am. Fork v. Shen, FA 699645 (Nat.
Arb. Forum June 11, 2006) (holding that the respondent’s previous use of
the <bankofamericanfork.com> domain name to maintain a web directory was
evidence of bad faith because the respondent presumably commercially benefited
by receiving click-through fees for diverting Internet users to unrelated
third-party websites); see also 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)).
Complainant asserts that Internet users, searching for Complainant’s services, will be confused by the disputed domain name when it resolves to a web directory with links to third-party competitors of Complainant. Further, Internet users may become confused as to Complainant’s sponsorship or affiliation with the disputed domain name and resolving website. Complainant asserts that Respondent attempts to profit from this likelihood of confusion through its presumed receipt of click-through fees by linking to third-party websites. Therefore, the Panel finds Respondent’s use of the <pacificlife.mobi> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel determines that
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 <pacificlife.mobi> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 23, 2010
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