Allstate Insurance Company v. Legaldmn Admin
Claim Number: FA1102001371360
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Legaldmn Admin (“Respondent”), Alaska, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allstater.com>, registered with Moniker Online Services, Inc.
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.
Honorable Paul A. Dorf (Ret.)as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 4, 2011; the National Arbitration Forum received payment on February 8, 2011.
On February 4, 2011, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <allstater.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 February 14, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 2011 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@allstater.com. Also on February 14, 2011, 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 March 10, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <allstater.com> domain name is confusingly similar to Complainant’s ALLSTATE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <allstater.com> domain name.
3. Respondent registered and used the <allstater.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, holds the exclusive rights to its ALLSTATE.COM mark which it uses in connection with its insurance and financial services business. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ALLSTATE.COM mark (e.g., Reg. No. 3,164,784 issued October 31, 2006).
Respondent, Legaldmn Admin, registered the <allstater.com> domain name on July 30, 2008. The disputed domain redirects Internet users to a website located at <allstateincurance.com> which displays pay-per-click hyperlinks resolving to Complainant’s official website and sites of Complainant’s competitors.
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 asserts rights in the ALLSTATE.COM mark through its registrations with the USPTO (e.g., Reg. No. 3,164,784 issued October 31, 2006). The Panel finds that a trademark registration with a federal trademark authority is sufficient to establish rights in a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also 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).”). Therefore, the Panel finds that Complainant has established rights under Policy ¶ 4(a)(i) in the ALLSTATE.COM mark through its registrations with the USPTO.
Complainant contends that Respondent’s <allstater.com> domain name is confusingly similar to Complainant’s ALLSTATE.COM mark. The disputed domain name contains Complainant’s entire ALLSTATE.COM mark, differing only by the addition of the letter “r.” Previous panels have determined that the addition of a letter in a disputed domain name does not sufficiently distinguish it from a complainant’s famous mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that “[a] domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive.”). Accordingly, the Panel finds Respondent’s <allstater.com> domain name to be confusingly similar to Complainant’s ALLSTATE.COM mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent lacks rights and legitimate interests in the <allstater.com> domain name. Previous panels assert that when a complainant makes a prima facie case in support of its allegations, the burden of proof will fall on the respondent to show they have rights pursuant to Policy ¶ 4(a)(ii). In this instance, the Panel finds that Complainant has made a prima facie case. Further, the Panel is allowed to infer that Respondent does not have rights or legitimate interests in the disputed domain name based on their lack of response to the Complaint. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). Nevertheless, the Panel will examine the record to determine whether or not Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Respondent has set forth no evidence in the record to suggest that it is commonly known by the <allstater.com> domain name. Complainant asserts that Respondent is not authorized to use the ALLSTATE.COM mark. The WHOIS information identifies the domain name registrant as “Legaldmn Admin.” Finding a lack of evidence indicative of Respondent being known by the disputed domain name, the Panel finds that Respondent has not established any rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the disputed domain name to redirect Internet users to an alternate website <allstateincurance.com>. The website displays pay-per-click links which Respondent likely profits from. The Panel finds that such use does not constitute 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). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also 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).”).
Respondent takes advantage of a common mistyping of Complainant’s mark by using the <allstater.com> domain name which is different from Complainant’s ALLSTATE.COM mark by only one letter. The Panel finds such action to constitute typosquatting and to be further evidence of Respondent’s lack of rights and legitimate interests in the disputed 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 Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent uses the disputed domain name to direct Internet users to sites of Complainant’s competitors, as well as, to display a link to Complainant’s own site. The Panel finds that this constitutes a disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); 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)).
Respondent uses a confusingly similar domain name to attract Internet users to a pay-per-click site which it purportedly profits from. Internet users are likely to become confused as to the relationship between Respondent and Complainant and Respondent likely takes advantage of such confusion in an attempt to commercially gain. The Panel finds this to constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Complainant alleges that Respondent is engaged in typosquatting when it diverts Internet users who likely reach Respondent’s website when they enter a mistyping of Complainant’s mark. The Panel finds this use to be in bad faith pursuant to 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 Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of 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 <allstater.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: March 24, 2011
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