Metropolitan Life Insurance Company v. paulo
Claim Number: FA1006001330441
Complainant is Metropolitan Life Insurance Company (“Complainant”), represented by Jeffrey E. Francis, of Sullivan & Worcester LLP, Massachusetts, USA. Respondent is paulo (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <mtelife.com>, registered with DYNADOT, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 16, 2010.
On June 17, 2010, DYNADOT, LLC confirmed by e-mail to the National Arbitration Forum that the <mtelife.com> domain name is registered with DYNADOT, LLC and that Respondent is the current registrant of the name. DYNADOT, LLC has verified that Respondent is bound by the DYNADOT, LLC 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 June 23, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 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@mtelife.com by e-mail. Also on June 23, 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 July 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 "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 <mtelife.com> domain name is confusingly similar to Complainant’s METLIFE mark.
2. Respondent does not have any rights or legitimate interests in the <mtelife.com> domain name.
3. Respondent registered and used the <mtelife.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Metropolitan Life Insurance Company, is an international servicer and provider of insurance, annuities, pension, non-medical health, property and casualty insurance products, and savings and retirement products. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office ("USPTO") for its METLIFE marks (e.g., Reg. No. 1,541,862 issued May 30, 1989).
Respondent, Paulo, registered the <mtelife.com> domain name on June 6, 2010 and has not connected the domain name to an active website.
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 its METLIFE mark under Policy ¶ 4(a)(i) through its multiple trademark registrations with the USPTO (e.g., Reg. No. 1,541,862 issued May 30, 1989). The Panel further finds that Complainant’s trademark registrations need not be in the country of Respondent’s residence to enforce its rights in the METLIFE mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Respondent’s <mtelife.com>
domain name is confusingly similar to Complainant’s METLIFE mark, in that it
simply transposes the letters “e” and “t” in the mark and adds the generic
top-level domain (“gTLD”) “.com.” This
is not sufficient to render the disputed domain name distinct from
Complainant’s METLIFE mark. The Panel
finds that Respondent’s <mtelife.com>
domain name is confusingly similar to Complainant’s METLIFE mark under Policy ¶
4(a)(i). 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 Delta Corporate Identity, Inc. v.
SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the
<dleta.com> domain name was confusingly similar to the complainant’s
DELTA mark); see also 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).
The Panel finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have rights and legitimate interests in the <mtelife.com> domain name under Policy ¶ 4(a)(ii). Complainant must provide a prima facie case in support of such allegations. Once Complainant has produced a prima facie case the burden shifts to Respondent to show that it has rights or legitimate interests in the <mtelife.com> domain name. See F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007) (“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.”); 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).”). The Panel finds that Complainant has produced a prima facie case in support of its allegations, and that the burden of proof has properly shifted to Respondent. Due to Respondent’s failure to provide a Response to these proceedings, the Panel may presume that Complainant’s allegations are true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will analyze the evidence on record to determine whether Respondent possesses rights and legitimate interests in the <mtelife.com> domain name under Policy ¶ 4(c).
Complainant contends that no relationship exists between it and Respondent that would give rise to any license, permission or authorization to Respondent to use Complainant’s mark in a domain name. The WHOIS information identifies “Paulo” as the registrant, and Respondent has not come forward with any evidence to show that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <mtelife.com> 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 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).
Complainant also contends that Respondent has not used, or
shown demonstrable preparations to use, the <mtelife.com>
domain name. Complainant argues that
Respondent does not have rights and legitimate interests in the disputed domain
name where Respondent has no obvious connection to the domain name and the
domain name has been dormant since Respondent registered it. The Panel finds that Respondent’s failure to
make an active use of the <mtelife.com>
domain name, or to submit evidence indicating demonstrable preparations for use
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 Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(finding that when the respondent declares its intent to develop a website,
“[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of
such preparations to use the domain name, and 2) that such preparations were
undertaken ‘before any notice to [Respondent] of the dispute’”); see also George Weston Bakeries Inc. v. McBroom, FA 933276
(Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or
legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶
4(c)(iii) where it failed to make any active use of the domain name).
Respondent is taking advantage of Internet users that are trying to reach Complainant’s official <metlife.com> website by using a common misspelling of Complainant’s METLIFE mark involving the transposition of two letters. The Panel finds that Respondent’s engagement in typosquatting is evidence that Respondent lacks rights and legitimate interests in the <mtelife.com> domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). Therefore, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).
The Panel finds that Complainant has satisfied the requirements of 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 the review is not limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Respondent has failed to make an active use or connect the <mtelife.com> domain name to any content since registering the domain name. The Panel finds that Respondent’s failure to make an active use of the disputed domain name is evidence of Respondent’s bad faith registration 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
Respondent has engaged in typosquatting by registering the <mtelife.com> domain name that contains a common misspelling of Complainant’s METLIFE mark. The Panel finds that his practice constitutes evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds that
Complainant has satisfied the requirements of 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 <mtelife.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 23, 2010
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