Metropolitan Life Insurance Company v. c/o METLIFEAUTOINSURANCE.COM
Claim Number: FA1107001398070
Complainant is Metropolitan Life Insurance Company (“Complainant”), represented by Gary Saposnik of Melbourne IT Digital Brand Services, California, USA. Respondent is c/o METLIFEAUTOINSURANCE.COM (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <metlifeautoinsurance.com>, registered with Dotster.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 11, 2011; the National Arbitration Forum received payment on July 19, 2011.
On July 15, 2011, Dotster confirmed by e-mail to the National Arbitration Forum that the <metlifeautoinsurance.com> domain name is registered with Dotster and that Respondent is the current registrant of the name. Dotster has verified that Respondent is bound by the Dotster 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 July 19, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 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@metlifeautoinsurance.com. Also on July 19, 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 August 11, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant provides services related to insurance, annuity, pension fund, non-medical health, property and casualty insurance, and savings and retirement accounts.
Complainant holds registrations for its METLIFE service mark with the United States Patent and Trademark Office (“USPTO”) (including Reg. No. 1,541,862, registered May 30, 1989).
Respondent registered the <metlifeautoinsurance.com> domain name on March 19, 2004.
The disputed domain name resolves to a website featuring links to third-party websites that offer insurance services from Complainant’s business competitors.
Respondent’s <metlifeautoinsurance.com> domain name is confusingly similar to Complainant’s METLIFE mark.
Respondent is not commonly known by the disputed domain name.
There is no relationship between Complainant and Respondent that would give
rise to any license, permission or authorization by which Respondent could own or use the disputed domain name.
Respondent does not have any rights to or legitimate interests in the domain name <metlifeautoinsurance.com>.
Respondent registered and uses the <metlifeautoinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the METLIFE service mark under Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (finding “no difficulty” in holding that a complainant had established rights in its marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO); see also Metro. Life Ins. Co. v. Glu, FA 874496 (Nat. Arb. Forum Feb. 13, 2007) (finding that a complainant had rights in the METLIFE mark as a result of its registration of the mark with the United States national trademark authority).
Respondent’s <metlifeautoinsurance.com> is confusingly similar to Complainant’s METLIFE service mark. The disputed domain name contains Complainant’s mark in its entirety, followed by the generic words “auto” and “insurance”, an evident allusion to Complainant’s business. The use of Complainant’s entire mark paired with generic words obviously allusive to Complainant’s business cannot distinguish a disputed domain name from the mark from which it was derived for purposes of Policy ¶ 4(a)(i). Similarly, addition of the generic top-level domain (gTLD) “.com” to Respondent’s domain name cannot serve to distinguish it from Complainant’s under the standards of the Policy. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where the domain name <kohlerbaths.com> contained a complainant’s mark in its entirety, adding the descriptive term ‘baths,’ an obvious allusion to that complainant’s business.). See also Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007):
The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Therefore the Panel finds that Respondent’s <metlifeautoinsurance.com> is confusingly similar to Complainant’s METLIFE service mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain name. Complainant carries the initial burden of establishing a prima facie case on this point. Once this has been done, the burden shifts to Respondent to counter Complainant’s allegations. See F. Hoffmann-La Roche AG v. Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007):
Proper analysis of paragraph 4(a)(ii) of the Policy shows that the burden of proof shifts from the Complainant to the Respondent once the Complainant has made out a prima facie case that the Respondent has no rights or interests in the domain names.
Respondent’s failure to produce a Response to the allegations of the Complaint filed in this proceeding may be taken as an admission of the absence of rights to or legitimate interests in a disputed domain name. See, for example, Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that a respondent has no rights or legitimate interests in a domain name because that respondent never submitted a response to a UDRP complaint).
Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name, and that there is no relationship between Complainant and Respondent that would give rise to any license, permission or authorization by which Respondent could own or use the disputed domain name. While the WHOIS information for the contested domain name identifies the registrant as “METLIFEAUTOINSUR-ANCE.COM,” which resembles the domain name, there is no evidence in the record to support the proposition that Respondent has been known by the domain name at any time before the domain name was registered. On this record we must conclude that Respondent has not been commonly known by the contested domain name so as to have rights to or legitimate interests in the domain under Policy ¶ 4(c)(ii). SeeYoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003), finding that a respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was:
no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name.
This conclusion is bolstered by Respondent’s failure to demonstrate that it was licensed or authorized in any other way to make use of Complainant’s mark in its domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a complainant’s mark and failed to submit evidence that it was commonly known by the disputed domain name).
We also observe that Complainant alleges, without objection from Respondent, that Respondent’s use of the disputed <metlifeautoinsurance.com> domain name is neither 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) because the domain name resolves to a website featuring links to third-party websites that offer insurance services from Complainant’s business competitors. We concur in this assessment. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights to and legitimate interests in the <bravoclub.com> domain name because that respondent was using the domain name to operate a website containing links to various commercial websites competing with the business of a complainant, which the panel found not to be a use in connection with 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 also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that a respondent’s use of the domain name <expediate.com> to redirect Internet users to a website featuring links to travel services that competed with the business of a complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s registration and use of the disputed domain name as alleged in the Complaint constitutes disruption of Complainant’s business, and therefore stands as evidence of bad faith registration and use of the domain under Policy ¶ 4(b)(iii). By using a domain name confusingly similar to Complainant’s METLIFE service mark to host links directing Internet users to websites featuring services competing with the business of Complainant, Respondent has disrupted Complainant’s business under Policy ¶ 4(b)(iii). See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that a respondent registered and used a disputed domain name in bad faith under Policy ¶ 4(b)(iii) because that respondent used the domain name to advertise goods and services of a complainant’s competitors, thereby disrupting that complainant’s business); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name confusingly similar to a complainant’s mark to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represented bad faith registration and use of the domain under Policy ¶ 4(b)(iii)).
Because the circumstances here presented permit us to presume that Respondent profits in the form of receipt of click-through or similar fees from the operation of the website resolving from the contested domain name, which is confusingly similar to Complainant’s METLIFE service mark, we also conclude that Respondent’s conduct in registering and using the domain as alleged in the Complaint evidences bad faith registration and use under Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that a respondent registered and used a domain name in bad faith under Policy ¶ 4(b)(iv) because that respondent gained commercially from the likelihood of confusion between the domain and a complainant’s mark); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use of a domain name by using one that was confusingly similar to a complainant’s mark to offer links to third-party websites featuring services similar to those offered by that complainant).
For these reasons, the Panel finds that Complainant has satisfied its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <metlifeautoinsurance.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 16, 2011
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