Assurant, Inc. v. Nicholas Suchyta
Claim Number: FA1010001355546
Complainant is Assurant, Inc. (“Complainant”), represented by Theresa Conduah of Alston & Bird LLP, North Carolina, USA. Respondent is Nicholas Suchyta (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org>, registered with 1 & 1 INTERNET AG.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 29, 2010; the National Arbitration Forum received payment on November 1, 2010.
On November 2, 2010, 1 & 1 INTERNET AG confirmed by e-mail to the National Arbitration Forum that the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names are registered with 1 & 1 INTERNET AG and that Respondent is the current registrant of the names. 1 & 1 INTERNET AG has verified that Respondent is bound by the 1 & 1 INTERNET AG 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 November 4, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 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@assurantdata.com, postmaster@assurantdata.biz, postmaster@assurantdata.net, and postmaster@assurantdata.org. Also on November 4, 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 November 30, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names are confusingly similar to Complainant’s ASSURANT mark.
2. Respondent does not have any rights or legitimate interests in the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names.
3. Respondent registered and used the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Assurant, Inc., holds a trademark registration for its ASSURANT mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,543,367 issued February 26, 2002) in connection with insurance and financial services.
Respondent, Nicholas Suchyta, registered the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names on February 7, 2009. The disputed domain names resolve to websites that contain an error message, “Error 404-Not Found,” and no other content.
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 of its trademark registration for its ASSURANT mark with the USPTO (Reg. No. 2,543,367 issued February 26, 2002). In Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) and Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), previous panels concluded that a federal trademark registration was sufficient to demonstrate rights in a mark. Based on this precedent, the Panel holds that Complainant has established rights in its ASSURANT mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names are confusingly similar to Complainant’s ASSURANT mark. The disputed domain names contain Complainant’s entire mark and simply add the generic term “data” and the generic top-level domain (“gTLD”) “.com,” “.net,” “.org,” or “.biz.” In Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001), the panel found that the addition of a generic term did not sufficiently distinguish the disputed domain name from the complainant’s mark. Moreover, in Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003), the panel determined that the addition of a generic top-level domain (“gTLD”) was irrelevant to a Policy ¶ 4(a)(i) analysis. Based on the determinations made by previous panels, this Panel concludes that Respondent’s <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names are confusingly similar to Complainant’s ASSURANT mark under Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any rights or legitimate interests in the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). In Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000), the panel held that “[a]lthough Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.” The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. The panel found, in Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000), that it is appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names. The WHOIS information identifies the domain name registrant as “Nicholas Suchyta,” which the Panel finds is not similar to the disputed domain names. After examining the record, the Panel is unable to find any evidence that Respondent is commonly known by the disputed domain names. In M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), the panel held 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. Similarly, in St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panel concluded that a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names pursuant to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s failure to make an active use of the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names provides evidence of Respondent’s lack of rights and legitimate interests in the disputed domain names. All of the disputed domain names resolve to websites that only contain the error message: Error 404-Not Found. In Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) and George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007), the panels found that the failure to make an active use of a disputed domain name was not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Consequently, the Panel concludes that Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate or noncommercial use pursuant to Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has established that Respondent does not make an active use of the <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names. In Disney Enters. Inc. v. Meyers, FA 697818 (Nat. Arb. Forum June 26, 2006) and American Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007), the panels held that the failure to make an active use of the disputed domain is evidence of bad faith registration and use of a disputed domain name under Policy ¶ 4(a)(iii). The Panel agrees with this precedent, holding that Respondent’s registration and use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel finds 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 <assurantdata.com>, <assurantdata.biz>, <assurantdata.net>, and <assurantdata.org> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 7, 2010
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