Allstate Insurance Company v. Randall Stevens
Claim Number: FA1102001375194
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Randall Stevens (“Respondent”), Lebanon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <encompassinsurane.com>, registered with DYNADOT, LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 28, 2011; the National Arbitration Forum received payment on March 1, 2011.
On February 28, 2011, DYNADOT, LLC confirmed by e-mail to the National Arbitration Forum that the <encompassinsurane.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 2, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 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@encompassinsurane.com. Also on March 2, 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 James A. Carmody, Esq., 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 <encompassinsurane.com> domain name is confusingly similar to Complainant’s ENCOMPASS INSURANCE mark.
2. Respondent does not have any rights or legitimate interests in the <encompassinsurane.com> domain name.
3. Respondent registered and used the <encompassinsurane.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, is an insurance provider and under the ENCOMPASS INSURANCE mark, Complainant offers insurance underwriting services in the fields of liability and property insurance. Complainant’s mark is registered with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,837,616 issued May 4, 2004).
Respondent, Randall Stevens, registered the <encompassinsurane.com> domain name on May 23, 2007. The disputed domain name resolves to a website displaying hyperlinks to websites that compete with Complainant’s insurance business.
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 ENCOMPASS INSURANCE mark based on its registration with the USPTO (e.g., Reg. No. 2,837,616 issued May 4, 2004). The Panel finds that registration of a mark with a federal trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); 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 alleges that Respondent’s <encompassinsurane.com> domain name is confusingly similar to the ENCOMPASS INSURANCE mark. The disputed domain name incorporates the dominant portion of Complainant’s mark, while removing the space between the terms of the mark and the letter “c” from the term “insurance”. Additionally, Complainant argues that adding the generic top-level domain (“gTLD”) “.com” to Complainant’s mark is irrelevant to an analysis under the Policy. The Panel finds that Respondent’s <encompassinsurane.com> domain name is confusingly similar to the ENCOMPASS INSURANCE mark and Respondent’s actions have not resulted in a unique domain name under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); 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); 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 finds Policy ¶ 4(a)(i) has been established.
Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name. A complainant making a prima facie showing in support of its allegations shifts the burden to respondent in order to prove it has rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has made a prima facie showing and because Respondent failed to make a timely response to these proceedings, the Panel elects to assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine whether the record shows Respondent has any rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See 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); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Complainant argues that Respondent is not commonly known by the disputed domain name and that Respondent never received authorization to use the ENCOMPASS INSURANCE mark. Respondent has not alleged any evidence and the Panel, after examining the record, can find no evidence that would support a finding that Respondent is commonly known by the disputed domain name. The WHOIS information lists the registrant of the <encompassinsurane.com> domain name as “Randall Stevens” which Complainant alleges is not similar to the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant tot Policy ¶ 4(c)(ii). 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 Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Complainant contends Respondent uses the disputed domain name to resolve to a directory website containing hyperlinks to Complainant’s competitors in the insurance industry. The Panel finds that Respondent’s use of a confusingly similar domain name to operate a website featuring links to Complainant’s competitors is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See 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)); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry).
Complainant alleges the disputed domain name is evidence that Respondent has engaged in typosquatting. Internet users that mistakenly misspell Complainant’s mark and remove the letter “c” from Complainant’s mark are redirected to Respondent’s resolving website. Complainant contends that this is a 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 with Complaint’s assertions and finds that Respondent lacks rights or legitimate interests in the domain name. 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 Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (finding no rights or legitimate interests where the respondent merely redirected the <wwwmedline.com> domain name to the complainant’s own website at <medline.com>).
The Panel finds Policy ¶ 4(a)(ii) has been established.
Respondent’s domain name resolves to a website featuring hyperlinks to competing websites. The Panel finds that Respondent’s disputed domain name disrupts Complainant’s business. The Panel concludes, therefore, that Respondent has engaged in bad faith registration and use of the disputed domain name 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)).
The Panel infers that Respondent receives click-through fees from the hyperlinks posted on the website resolving from the disputed domain name. Internet users searching for, and intending to find Complainant’s business, may be redirected to Respondent’s website. Complainant argues that Internet users are likely to become confused as to Complainant’s sponsorship and affiliation with the disputed domain name, resolving website, and featured hyperlinks. Thus, the Panel finds that Respondent has engaged in bad faith registration and use of the disputed domain name pursuant to 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 Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
As established previously, Respondent has engaged in typosquatting. The Panel concludes 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 Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).
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 <encompassinsurane.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 29, 2011
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