Allstate Insurance Company v. Domain Administrator
Claim Number: FA1102001375219
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Domain Administrator (“Respondent”), Jordan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <encompassinsurace.com>, registered with Moniker Online Services, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 28, 2011; the National Arbitration Forum received payment on March 2, 2011.
On March 3, 2011, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <encompassinsurace.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 March 7, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 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@encompassinsurace.com. Also on March 7, 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 30, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <encompassinsurace.com> domain name is confusingly similar to Complainant’s ENCOMPASS INSURANCE mark.
2. Respondent does not have any rights or legitimate interests in the <encompassinsurace.com> domain name.
3. Respondent registered and used the <encompassinsurace.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, owns certain affiliated companies which it markets under the mark ENCOMPASS INSURANCE. Through these companies, Complainant sells insurance products throughout the United States. Complainant owns a United States Patent and Trademark Office (“USPTO”) registration for the ENCOMPASS INSURANCE mark (Reg. No. 2,837,616 issued May 4, 2004).
Respondent registered the <encompassinsurace.com> domain name on November 23, 2005. The disputed domain name directs Internet users to a website that features a variety of advertising links with titles like “Car Insurance,” “Auto Insurance Company,” and “Free Auto Insurance Insurance Quote.”
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 owns a USPTO registration for the ENCOMPASS INSURANCE mark (Reg. No. 2,837,616 issued May 4, 2004). The Panel finds that this USPTO trademark registration is evidence of Complainant’s rights in the ENCOMPASS INSURANCE mark for the purposes of Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); 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).”).
Complainant alleges that Respondent’s <encompassinsurace.com> domain name is confusingly similar to Complainant’s mark because it is merely a misspelling of the ENCOMPASS INSURANCE mark that omits the letter “n” in “insurance.” The disputed domain name also makes the inconsequential modifications of the deletion of the space between terms and the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that simply misspelling Complainant’s mark in the disputed domain name by deleting a letter is insufficient to remove the disputed domain name from the realm of confusing similarity. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see also CEC Entm’t, Inc. v. Peppler, FA 104208 (Nat. Arb. Forum Mar. 21, 2002) (finding that the <chuckcheese.com> domain name was confusingly similar to the complainant’s CHUCK E. CHEESE mark because the domain name only differed from the mark by one letter). The Panel also concludes that an omitted space and an added generic top-level domain (“gTLD”) does not change the essential character of the disputed domain name according to 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.”). The Panel concludes that Respondent’s <encompassinsurace.com> domain name is confusingly similar to Complainant’s ENCOMPASS INSURANCE mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) places the burden on Complainant to establish a prima facie case against Respondent’s rights and legitimate interests. Once Complainant has presented such a case, as in the instant proceedings, the burden to show rights and legitimate interests shifts to Respondent. By defaulting, however, Respondent has not presented any evidence of rights and legitimate interests or contested Complainant’s allegations. The Panel thus accepts Complainant’s allegations as true and determines that Respondent does not possess rights and legitimate interests in the disputed domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed). In the interest of fairness, however, the Panel elects to consider the evidence according to the Policy ¶ 4(c) factors.
Complainant asserts that Respondent is not commonly known by the <encompassinsurace.com> domain name. The WHOIS information for the disputed domain name does not indicate any connection to the disputed domain name. The Panel therefore concludes that Respondent is not commonly known by the disputed domain name and consequently lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a 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 that Respondent uses the <encompassinsurace.com> to redirect Internet users to Respondent’s website featuring a variety of third-party pay-per-click links with titles related to insurance services and products. The Panel finds that maintaining a pay-per-click link directory to facilitate competition with Complainant at a confusingly similar domain name does not demonstrate a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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 also Skyhawke Techns., 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 that that the <encompassinsurace.com> domain name consists almost solely of a misspelled version of Complainant’s ENCOMPASS INSURANCE mark. The Panel finds that registering a domain name that differs by only one letter from Complainant’s mark is likely intended to take advantage of typographical errors made by consumers with the purpose of diverting them. The Panel finds that such domain name registration is typosquatting and serves as evidence of a lack of rights and legitimate interests in the <encompassinsurace.com> on the part of Respondent. 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 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’”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that the website resolving from the <encompassinsurace.com> domain name is simply a pay-per-click directory of links related to third-party websites offering insurance products and services in competition with Complainant. As the Internet users diverted to this directory site were likely seeking insurance products, the directory is of particular interest to them and it disrupts Complainant’s business by essentially advertising for Complainant’s competitors under Complainant’s mark. The Panel finds these activities indicate bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also 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)).
Complainant argues that Respondent registered a domain name confusingly similar to Complainant’s mark for the purpose of misleading and attracting Internet users who would recognize and were searching for Complainant’s mark. Complainant asserts that Respondent’s use of Complainant’s mark in the disputed domain name creates a likelihood that these diverted consumers will believe that Respondent’s website is somehow sponsored by or affiliated with Complainant. Complainant contends that Respondent thus registered the disputed domain name intentionally to create this confusion and subsequently profit from pay-per-click links displayed on the resolving website. The Panel finds Respondent’s efforts demonstrate bad faith registration and use according to Policy ¶ 4(b)(iv). See 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); 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)).
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through its practice of registering the <encompassinsurace.com> confusingly similar disputed domain name. The Panel finds typosquatting to be evidence in itself of bad faith registration and use under 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 Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <encompassinsurace.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: April 1, 2011
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