Allstate Insurance Company v. Admin Tech
Claim Number: FA1103001375375
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Admin Tech (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allstatemotoinsurance.net>, 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.
Judge Harold Kalina (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 2, 2011, MONIKER ONLINE SERVICES, INC. confirmed by e-mail to the National Arbitration Forum that the <allstatemotoinsurance.net> 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@allstatemotoinsurance.net. 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 29, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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 <allstatemotoinsurance.net> domain name is confusingly similar to Complainant’s ALLSTATE mark.
2. Respondent does not have any rights or legitimate interests in the <allstatemotoinsurance.net> domain name.
3. Respondent registered and used the <allstatemotoinsurance.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, has provided insurance services since 1931 under its ALLSTATE mark. Complainant holds multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its ALLSTATE mark (e.g., Reg. No. 717,683 issued June 27, 1961).
Respondent, Admin Tech, registered the <allstatemotoinsurance.net> domain name on October 20, 2010. The disputed domain name fails to resolve to an active website.
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 holds multiple trademark registrations with the USPTO for its ALLSTATE mark (e.g., Reg. No. 717,683 issued June 27, 1961). In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) and Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002), the panels held that a USPTO trademark registration is sufficient to establish rights under Policy ¶ 4(a)(i). This Panel finds accordingly.
Respondent’s <allstatemotoinsurance.net> domain name contains Complainant’s entire ALLSTATE mark and adds the descriptive terms “insurance” and “moto,” which is the misspelled version of the term “motor.” Finally, Respondent attaches the generic top-level domain (“gTLD”) “.net.” In Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) and Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000), the panels concluded that the addition of descriptive terms fails to distinguish a disputed domain name from a complainant’s mark. In Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) and Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003), the panels held that a gTLD is required in all domain names so the addition of a gTLD is irrelevant. Based on this past precedent, the Panel determines Respondent’s <allstatemotoinsurance.net> domain name is confusingly similar to Complainant’s ALLSTATE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <allstatemotoinsurance.net> domain name. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held that the burden shifts to the respondent to prove it does have rights or legitimate interests when the complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). In this case, the Panel finds Complainant made a sufficient prima facie case. In Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000), the panel held that a respondent’s failure to respond to the Complaint allows the Panel to infer that a respondent does not have rights or legitimate interests in a disputed domain name. However, this Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by the disputed domain name. The WHOIS information identifies the domain name registrant as “Admin Tech,” which the Panel determines is not similar to the <allstatemotoinsurance.net> domain name. After examining the record, the Panel fails to find any evidence that would support a finding that Respondent is commonly known by the <allstatemotoinsurance.net> domain name. In Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) and M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), the prior panels found that a respondent is not commonly known by a disputed domain name if the WHOIS information and the record do not provide evidence of such a fact. Therefore, the Panel holds that Respondent is not commonly known by the <allstatemotoinsurance.net> domain name under Policy ¶ 4(c)(ii).
Respondent’s <allstatemotoinsurance.net> domain name resolves to a blank website. In Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) and George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007), the panels determined that a respondent’s 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. In compliance with this precedent, this Panel concludes that Respondent’s failure to make an active use of the disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
In Educ. Testing Serv. v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) and Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000), the panels held that Policy ¶ 4(b) is not an exclusive list of examples of bad faith registration and use of a contested domain name, so that circumstances falling outside the explicit parameters of that provision of the Policy can provide persuasive evidence for a finding of bad faith registration and use under Policy ¶ 4(a)(iii). This Panel finds accordingly.
Respondent fails to make an active use of its <allstatemotoinsurance.net> domain name. In Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) and Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007), the panels held that failure to make an active use constitutes evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). This Panel agrees with such precedent and finds accordingly.
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 <allstatemotoinsurance.net> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: April 7, 2011
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