Metropolitan Life Insurance Company v. Lee Hoong
Claim Number: FA1009001347312
Complainant is Metropolitan Life Insurance Company ("Complainant"), represented by Jeffrey E. Francis of Sullivan & Worcester LLP, Massachusetts, USA. Respondent is Lee Hoong ("Respondent"), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <metlifelifeinsurance.net>, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 17, 2010; the National Arbitration Forum received payment on September 20, 2010.
On September 21, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <metlifelifeinsurance.net> 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 22, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@metlifelifeinsurance.net. Also on September 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 October 22, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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:
Complainant has used the METLIFE mark since 1968 to provide insurance, savings, and retirement services and residential and commercial mortgages, as well as many other insurance and financial services.
Complainant owns trademark registrations for its METLIFE service mark with the United States Patent and Trademark Office ("USPTO") (including Reg. No. 1,541,862, issued May 30, 1989).
Complainant also owns trademark registrations with the Intellectual Property Corporation of Malaysia (“PHIM”) for its METLIFE trade mark (including Reg. No. 1,008,498, issued June 7, 2001).
Respondent registered the <metlifelifeinsurance.net> domain name on March 30, 2010.
Respondent’s domain name resolves to a website that appears to be that of Complainant, and that offers information about life insurance products and purports to give Internet users a price quote on insurance products, so that Respondent is confusing Internet users into thinking Respondent is Complainant.
Respondent’s <metlifelifeinsurance.net> domain name is confusingly similar to Complainant’s METLIFE mark.
Respondent is not commonly known by the <metlifelifeinsurance.net> domain name, nor has Complainant granted Respondent permission to use Complainant’s mark.
Respondent does not have any rights to or legitimate interests in the domain name <metlifelifeinsurance.net>.
Respondent registered and uses the disputed <metlifelifeinsurance.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in its METLIFE trademark and service mark under Policy ¶ 4(a)(i) through its trademark registrations with the USPTO and with the PHIM. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that a complainant had established rights to the MILLER TIME mark through its trademark registrations); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that a complainant had established rights in marks where the marks were registered with a trademark authority).
The <metlifelifeinsurance.net> domain name is confusingly similar to Complainant’s METLIFE mark because the domain name contains the mark in its entirety while adding the descriptive terms “life” and “insurance”, which describe Complainant’s business, and the generic top-level domain (“gTLD”) “.net.” See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where a respondent’s domain name combines a complainant’s mark with a generic term that has an obvious relationship to that complainant’s business); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described a complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish a respondent’s disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i)); 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 therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights to or legitimate interests in the <metlifelifeinsurance.net> domain name. Complainant is required to make out a prima facie case in support of these allegations. Once Complainant has produced such a prima facie case, the burden shifts to Respondent to show that it has rights to or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), finding that:
complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it does have rights or legitimate interests.
See also 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.”
Complainant has produced a prima facie case under this head of the Policy. Owing to Respondent’s failure to respond to the Complaint filed in these proceedings, we may may presume that Respondent does not have any rights to or 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 Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where a respondent fails to respond to the allegations of a complaint filed under the Policy).
Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent possesses rights to or legitimate interests in the disputed domain name which are cognizable under the Policy
We begin by observing that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the <metlifelifeinsurance.net> domain name, nor has Complainant granted Respondent permission to use Complainant’s mark. Moreover, the WHOIS information for the <metlifelifeinsurance.net> domain name identifies the registrant only as “Lee Hoong”, which does not resemble the disputed domain name. On this record, we must conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated that it has rights to or legitimate interests in the contested 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 a respondent failed to establish rights or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a complainant’s mark and failed to submit evidence that it is commonly known by the disputed domain name); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the pertinent WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the disputed domain names, and where a complainant had not authorized that respondent to register a domain name containing its registered mark).
We also note that Complainant argues, without objection from Respondent, that Respondent is using the disputed domain name to resolve to Respondent’s website that displays information and literature about life insurance policies and products that are offered by Complainant, and that Respondent’s website appears to be that of Complainant, so that Respondent is confusing Internet users into thinking Respondent is Complainant. In the circumstances here presented, we may safely presume that Respondent conducts itself in the manner alleged for financial gain. Respondent’s use of the disputed domain name to attempt to pass itself off as Complainant in such circumstances 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 Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that a respondent’s attempt to pass itself off as a complainant online via an unauthorized use of a complainant’s mark is evidence that that respondent has no rights to or legitimate interests in a disputed domain name); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007):
Because respondent in this case is also attempting to pass itself off as complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
We may consider the totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and our review of the record is therefore not limited to the enumerated factors in Policy ¶ 4(b). See, for example, Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000):
[T]he examples [of bad faith registration and use of contested domain names] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.
Respondent is attempting to pass itself off as Complainant by using the domain name <metlifelifeinsurance.net>, which is confusingly similar to Complainant’s mark, to offer information on Complainant’s life insurance products from Respondent’s website. Respondent is using the METLIFE mark prominently on the website that resolves from the domain name at issue to make it appear as though Respondent is an agent of Complainant or otherwise authorized to provide information about Complainant’s products. Respondent has thus registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that a respondent's use of <monsantos.com> to misrepresent itself as a complainant, thus to provide misleading information to the public, supported a finding of bad faith); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that a respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the misimpression that a complainant had endorsed and sponsored that respondent’s website).
For this reason, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <metlifelifeinsurance.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 2, 2010
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