Allstate Insurance Company v. Michal Restl
Claim Number: FA1102001375161
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Michal Restl (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sllstate.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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 25, 2011; the National Arbitration Forum received payment on February 28, 2011.
On March 3, 2011, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <sllstate.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 4, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 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@sllstate.com. Also on March 4, 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 28, 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 <sllstate.com> domain name is confusingly similar to Complainant’s ALLSTATE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <sllstate.com> domain name.
3. Respondent registered and used the <sllstate.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, provides a plethora of insurance services under the ALLSTATE.COM mark which is registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,164,784 issued October 31, 2006).
Respondent, Michal Restl, registered the <sllstate.com> domain name on March 29, 2009. The disputed domain name resolves to a website displaying hyperlinks that direct Internet users to the websites of Complainant’s competitors in the insurance industry.
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 contends that it has established rights in the ALLSTATE.COM mark based on its registration of the mark with the USPTO (Reg. No. 3,164,784 issued October 31, 2006). The Panel finds Complainant’s evidence is sufficient for establishing rights in the mark pursuant to 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 Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant also alleges, under Policy ¶ 4(a)(i) that Respondent's <sllstate.com> domain name is confusingly similar to the ALLSTATE.COM mark. Respondent’s domain name differs from Complainant’s mark by one letter and the Panel finds that switching the first letter “a” to an “s” in Complainant’s mark does not prevent the Panel from finding that the <sllstate.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See 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); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”).
The Panel finds Policy ¶ 4(a)(i) has been established.
Complainant’s burden requires that it make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant has met this initial burden, Respondent receives the burden and must prove it has rights or legitimate interests in the disputed domain name. The Panel views Respondent’s failure to respond to these proceedings as evidence that Respondent lacks rights or legitimate interests under Policy ¶ 4(a)(ii). Despite Respondent’s failure to respond, the Panel will consider the evidence contained in the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). 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 Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
Complainant contends that Respondent is not authorized to use the ALLSTATE.COM mark and that Respondent is not commonly known by the <sllstate.com> domain name. The WHOIS information lists “Michal Restl” as the registrant of the disputed domain name. The Panel agrees with Complainant’s assertion that this is not similar to the disputed domain name. Based on the foregoing and, after thoroughly examining the record, the Panel can find no evidence that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding 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).
Complainant alleges the <sllstate.com> domain name resolves to a directory website that provides hyperlinks to Complainant’s competitors in the insurance industry. The Panel infers that Respondent profits from this scheme through the receipt of click-through fees which are generated when Internet users click on the hyperlinks posted on the website resolving from Respondent’s disputed domain name. The Panel finds that Respondent’s use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a confusingly similar domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in direct competition with a complainant, 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 also Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this 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).”).
Complainant alleges the <sllstate.com> domain name is evidence of typosquatting. Internet users who mistakenly misspell Complainant’s mark and type an “s” instead of an “a” at the beginning of Complainant’s mark will be redirected to Respondent’s resolving website. Complainant contends that the close proximity of these letters on the QWERTY keyboard results in this common spelling mistake and that Respondent’s typosquatting activities are evidence Respondent lacks rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). The Panel agrees. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); 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”).
The Panel finds Policy ¶ 4(a)(ii) has been established.
Respondent’s <sllstate.com> domain name resolves to a website displaying hyperlinks to Complainant’s insurance competitors. The Panel concludes that Respondent’s registration and use of the domain name disrupts Complainant’s business which constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Complainant argues that Respondent benefits financially from the disputed domain name through the receipt of click-through fees. Furthermore, Respondent’s domain name is likely to create confusion among Internet users as to Complainant’s sponsorship of, or affiliation with, the disputed domain name and resolving website. The Panel finds that Respondent’s registration, which was done in an attempt to profit from redirecting Internet users to a directory website, amounts to bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Lastly, as established previously, Respondent has engaged in typosquatting. The Panel finds that typosquatting is evidence of bad faith registration and use 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 The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sllstate.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.) Panelist
Dated: April 8, 2011
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