American Farm Bureau Federation v. Darba Domain Holder / Domain Holder
Claim Number: FA1007001335833
Complainant is American Farm Bureau Federation (“Complainant”), represented by Richard
A. Flynt, of Roylance, Abrams, Berdo & Goodman,
L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <farm-bureau-insurance-quotes.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 July 16, 2010.
On July 19, 2010, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <farm-bureau-insurance-quotes.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 July 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 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@farm-bureau-insurance-quotes.com by e-mail. Also on July 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 August 18, 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 "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 <farm-bureau-insurance-quotes.com> domain name is confusingly similar to Complainant’s FARM BUREAU INSURANCE mark.
2. Respondent does not have any rights or legitimate interests in the <farm-bureau-insurance-quotes.com> domain name.
3. Respondent registered and used the <farm-bureau-insurance-quotes.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Farm
Bureau Federation, has used the FARM BUREAU and FARM BUREAU INSURANCE marks to
deliver financial services, insurance underwriting, administration and agency
services. Complainant owns multiple
trademark registrations with the United States Patent and Trademark Office
("USPTO") for its FARM BUREAU INSURANCE (e.g., Reg. No. 1,622,828 isued November 13, 1990).
Respondent, Darba Domain Holder / Domain Holder, registered the <farm-bureau-insurance-quotes.com> domain name on April 18, 2008. Respondent’s disputed domain name resolves to a website that purports to work with “insurance agents and brokers capable of providing you with the most affordable insurance rates possible for the insurance coverage you need.” Respondent’s domain name features third-party hyperlinks and buttons for a variety of insurance services that asks Internet users to input personal information that will allow insurance agents and brokers to contact the user with insurance quotes.
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 submitted sufficient evidence that it possesses rights in the FARM BUREAU INSURANCE mark pursuant to Policy ¶ 4(a)(i) through its trademark registrations with the USPTO (e.g., Reg. No. 1,622,828 isued November 13, 1990). 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 Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant alleges that Respondent’s <farm-bureau-insurance-quotes.com>
domain name is confusingly similar to Complainant’s FARM BUREAU INSURANCE
mark. Complainant argues that the domain
name contains its mark entirely while replacing the spaces between the terms of
the mark with hyphens, adding a hyphen and the descriptive term “quotes,” and
adding the generic top-level domain (“gTLD”) “.com.” Complainant contends that such changes to its
mark are not sufficient to render the domain name distinct from Complainant’s
mark. The Panel agrees and finds that
Respondent’s disputed domain name is confusingly similar to Complainant’s mark
under Policy ¶ 4(a)(i). See Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not possess rights and legitimate interests in the <farm-bureau-insurance-quotes.com> domain name under Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to display that it does possess rights or legitimate interests in the disputed domain name. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also 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). The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the <farm-bureau-insurance-quotes.com> domain name. Respondent has failed to respond to these proceedings, and as such the Panel finds that it may infer that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). However, the Panel will analyze the evidence on record to determine whether Respondent has rights and legitimate interests in the <farm-bureau-insurance-quotes.com> domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the disputed domain name and that Complainant has not granted Respondent authorization to use its FARM BUREAU INSURANCE mark in any way. The WHOIS information for the <farm-bureau-insurance-quotes.com> domain name identifies “Darba Domain Holder / Domain Holder” as the registrant, and Respondent offers no evidence indicating that it is commonly known by the domain name. Therefore, the Panel finds that under Policy ¶ 4(c)(ii) Respondent is not commonly known by the disputed domain name. 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 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).
Complainant alleges that Respondent is using the <farm-bureau-insurance-quotes.com>
domain name to operate a “link farm” that features third-party hyperlinks to
insurance services and insurance quote websites in competition with
Complainant. Complainant has submitted
screen shot evidence to show that Internet users are asked to provide personal
information so that insurance brokers may contact the user with insurance
quotes. Further, Complainant’s evidence
shows that the hyperlinks and buttons placed on Respondent’s website redirect
Internet users to third-party websites such as <insurance-website.com>,
<insurance-official.com>, <autoinsurancesmartshopper.com> and
<good-credit-insurance.com> as well as others. Complainant argues that Respondent’s website,
as well as the third-party websites indicated above is in competition with
Complainant in the insurance services industry and that Respondent receives
click-through or affiliate fees from the businesses that have links on
Respondent’s website. Therefore, the
Panel finds that Respondent’s use of the disputed domain name does not
constitute 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 Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent
to divert Internet users seeking Complainant’s website to a website of
Respondent and for Respondent’s benefit is not a bona fide offering of goods or
services under Policy ¶ 4(c)(i) and it is not a
legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Wal-Mart Stores, Inc. v.
Power of Choice Holding Co., FA
621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of
domain names confusingly similar to the complainant’s WAL-MART mark to divert
Internet users seeking the complainant’s goods and services to websites
competing with the complainant did not constitute 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’s disputed domain name resolves to a website that
both competes with Complainant in the insurance industry itself and diverts
Internet users to various third-party websites that offer the same or similar
services as Complainant. The Panel finds
that such use of a confusingly similar domain name is likely to disrupt
Complainant’s online presence as it is presumed that Internet users who conduct
a search for Complainant will find Respondent’s website and purchase products
from competitors of Complainant.
Therefore, the Panel finds that Respondent has registered and used the <farm-bureau-insurance-quotes.com>
domain name in bad faith under Policy ¶ 4(b)(iii). See
Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”); see also
Complainant contends that Respondent is using the disputed domain name to attract Internet users to its website for commercial gain. Complainant alleges that Respondent receives click-through and affiliate fees from the businesses and websites that are advertised and linked on Respondent’s website resolving from the disputed domain name. Complainant argues that such use of a confusingly similar domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). The Panel agrees and finds that Respondent’s use of the disputed domain name to offer competing insurance services as well as to host a number of third-party hyperlinks to competing businesses of Complainant, presumably for financial gain, is further evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”).
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 should be GRANTED.
Accordingly, it is Ordered that the <farm-bureau-insurance-quotes.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: August 23, 2010
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