Metropolitan Life Insurance Company v. PrivacyProtect.org / Domain Admin
Claim Number: FA1108001404068
Complainant is Metropolitan Life Insurance Company (“Complainant”), represented by Gary Saposnik of Melbourne IT Digital Brand Services, California, USA. Respondent is PrivacyProtect.org / Domain Admin (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <metropolitanlifeinsurancecompany.com>, registered with Answerable.com (I) Pvt. Ltd.
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.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 19, 2011; the National Arbitration Forum received payment on August 19, 2011.
On August 23, 2011, Answerable.com (I) Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <metropolitanlifeinsurancecompany.com> domain name is registered with Answerable.com (I) Pvt. Ltd. and that Respondent is the current registrant of the name. Answerable.com (I) Pvt. Ltd. has verified that Respondent is bound by the Answerable.com (I) Pvt. Ltd. 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 August 23, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 12, 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@metropolitanlifeinsurancecompany.com. Also on August 23, 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 September 16, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix). The METROPOLITAN mark has been registered with the USPTO since April 25, 1989, and has been in use in commerce by Complainant, Metropolitan Life Insurance Company since September 1928 for a variety of insurance related services, including trademark coverage for “individual and group life and health insurance underwriting…” In addition, Complainant has a registered trademark for its METLIFE mark (an abbreviation for METROPOLITAN LIFE)(and family of METLIFE marks) which is internationally famous throughout the world for the goods and services the mark represents. Complainant has used the METLIFE mark in commerce continuously since at least as early as 1968 for an ever-increasing range of goods and services, and has expended hundreds of millions of dollars to advertise and market its METLIFE products and services, resulting in sales of billions of dollars’ worth of services under the METLIFE mark. In November of 1994, in furtherance of its marketing strategy and business, Complainant Metropolitan Life Insurance Company registered the www.metlife.com domain name, and registered the domain name METROPOLITANLIFE.COM on July 3, 1996. Complainant’s long-term, prominent usage of its famous METLIFE and METROPOLITAN marks has generated extensive fame and goodwill and widespread consumer recognition for the METLIFE and METROPOLITAN marks as identifying exclusively Complainant and Complainant’s Products and Services.
Complainant, Metropolitan Life Insurance Company, is a leader in the insurance, annuities, pension fund, non-medical health and property and casualty insurance, and savings and retirement products and services for individuals, small businesses and large institutions. Some of Complainant’s Insurance Products & Services include Auto, Home, Dental, Long Term Care, Term Life and Life Insurance. In addition, Complainant is also a leader in residential and commercial mortgage, lending, real estate brokerage and management services. MetLife is the largest life insurer in terms of life insurance “in-force” in North America, and offers financial products and services to 88 of the Fortune 100 companies. MetLife serves approximately 37 million employees and family members through their plan sponsors, and is currently ranked #46 on the Fortune 500 list and #174 on the Fortune Global 500 list. MetLife has ranked in the top 55 companies on the Fortune 500 list every year since 1995, and has ranked in the top 175 companies on the Fortune Global 500 list every year since 2005. MetLife is also a member of the S&P 500. Information about MetLife can be found on its website www.metlife.com.
MetLife also has major operations, affiliates and representative offices throughout the Americas, Europe, and Asia, including direct international insurance operations in 10 countries, serving approximately 8 million customers. In 1989, Complainant obtained trademark registrations in the United States for the METLIFE mark, as well as registered the METLIFE.COM domain name in 1994.
The METLIFE mark has become a famous and distinctive mark throughout the world as a symbol of the high quality standards that MetLife maintains for its products and related services. Courts in the United States have held so including, MetLife Inc. v. Metropolitan National Bank, 05 Civ. 3960 (S.D.N.Y. 2005), as have numerous panels including: Metropolitan Life Insurance Company and Metropolitan Casualty Insurance Company v. Gaines Enterprises, NAF Case Number 474807, Metropolitan Life Insurance Company v. Hyung Kim, NAF Case Number 781874, Metropolitan Life Insurance Company v. Furture-3D, Inc., NAF Case Number 781876, Metropolitan Life Insurance Company v. Digi Real Estate Foundation, NAF Case Number 812352, Metropolitan Life Insurance Company v. Inversiones G.O.S. S.A. c/o George Ring, NAF Case Number 823032, Metropolitan Life Insurance Company v. Kevin Daste, NAF Case Number 840648, Metropolitan Life Insurance Company v. RegisterFly.com – Ref-R # 51932528 c/o Whois Protection Services – ProtectFly.com, NAF Case Number 840639, and Metropolitan Life Insurance Company v. Robert Bonds; NAF Case Number 873143.
All of the registrations are valid, subsisting, unrevoked and uncancelled. The registration of the METROPOLITAN and METLIFE marks constitutes prima facie evidence of their validity and conclusive evidence of Complainant’s exclusive right to use the METROPOLITAN and METLIFE mark in commerce in connection with the goods and services named therein, and commercially related goods and services. The registration of the METROPOLITAN and METLIFE marks also constitutes statutory constructive notice to Respondent of Complainant’s ownership and exclusive rights in the METROPOLITAN and METLIFE marks. Such constructive notice is in addition to the actual notice that Respondent most certainly received given the extensive worldwide fame and reputation enjoyed by Complainant’s METROPOLITAN and METLIFE marks. Complainant maintains strict quality control standards for all of its products and services sold under the METROPOLITAN and METLIFE marks, as well as carefully maintain its corporate image. To date, Complainant has spent hundreds of millions of dollars in advertising and promoting Complainant’s products, services under the METROPOLITAN and METLIFE marks, and as a result, Complainant and affiliated companies have enjoyed billions of dollars in sales of Complainant’s products and services.
In December 2010, Complainant conducted a Whois search to determine the registrant of the Domain Name. At that time, the Whois search results indicated that the Registrant’s name was protected by a privacy protection service, PrivacyProtect.org, with the registrant listed as “PrivacyProtect.org/Domain Admin”. The registration by this registrant appears to have occurred on January 1, 2007, and subsequent to acquired trademark rights of Complainant. On December 6, 2010, a letter was sent to Respondent via electronic mail to the email address listed in the WHOIS information on December 3, 2010, requesting immediate transfer of the domain name and a response by December 17, 2010. To date, Complainant has not received any response from Respondent, or cooperation from Respondent in transferring the subject domain name.
a. The Domain Name is Confusingly Similar to Complainant’s Trademarks
The Domain Name registered by Respondent, METROPOLITANLIFEINSURANCECOMPANY.COM, is confusingly similar to Complainant’s famous METROPOLITAN and METLIFE mark. The Domain Name incorporates in total Complainant’s trademark, METROPOLITAN, which in abbreviated form is “MET” (also trademarked), and then adds the words “LIFE” and “INSURANCE”, which are descriptive words that have an obvious relationship to Complainant’s services, along with the general word “COMPANY”. Combined, these words are also the full name of Complainant, Metropolitan Life Insurance Company. Panels have consistently concluded that the use of a famous mark in its entirety, while adding a descriptive word that has an obvious relationship to a complainant’s business, will not distinguish a disputed domain name. See American Int’l. Group v. Mary Ellen Morris, NAF Case No. FA569033 (2005); Metropolitan Life Insurance Company v. Domain Admin, NAF Case No. FA860544 (2007)(“metropolitanlifeinsurance.com”); Metropolitan Life Insurance Company v. Robert Hargraves, NAF Case No. FA1126333 (2008); Metropolitan Life Insurance Company v. David Curran Clark, NAF Case No. FA1126352, (2008); Apple Inc. v. Laksh Internet Solutions Private Limited, NAF Case No. FA195659 (2008); Whitney Nat’l Bank v. EasyNet Ltd., NAF Case No. FA944330 (2007) (“The addition 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).”). Panels have usually found that the incorporated trademark constitutes the dominant or principal component of the domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), Section 1.9. Accordingly, Respondent’s incorporation in its entirety of the METROPOLITAN trademark within the domain name, while tagging-on of descriptive words with an obvious relationship to the famous METROPOLITAN mark, does not preclude a finding of confusing similarity. The inclusion of the descriptive terms LIFE, INSURANCE and COMPANY does not distinguish the disputed domain name from the METROPOLITAN mark, while the inclusion of the generic top-level domain also is irrelevant when considering whether a domain name is identical or confusingly similar. See Metropolitan Life Insurance Company v. Domain Admin, NAF Case No. FA860544 (2007) (“metropolitanlifeinsurance.com”); Metropolitan Life Insurance Company v. David Curran Clark, NAF Case No. FA1126352 (2008); Nev. State Bank v. Modern Ltd. – Cayman Web Dev., NAF Case No. FA204063 (2003); Liberty Mutual Insurance Company v. c/o SAFECOAUTOINSURANCE.COM, NAF Case No. FA1366190 (2011).
b. The Respondent Has No Legitimate Rights or Interests in the Domain Name
Respondent cannot demonstrate any legitimate rights or interests in the Domain Name. Where, as here, Complainant’s mark and name are so well known and widely recognized throughout the world, and have been used in connection with a wide variety of products for so many years, there can be no legitimate use by Respondent. For instance, in Nike Inc. v. B.B. de Boer, WIPO Case No. D2000-1397, the Panel concluded that the respondent had no legitimate rights noting that it was difficult to see how the respondent could not have known about the trademark NIKE. See also Victoria’s Secret, et. al. v. Atchinson Investments Ltd., NAF Case No. 96496.
In this case, Complainant has been doing business in the United States for over 100 years, including under the METROPOLITAN mark since at least 1928. In 1989, Complainant attained registration of the METROPOLITAN and METLIFE marks in the United States, as well as registered the ‘metlife.com’ domain name in 1994. Respondent did not register the subject domain name until January 2007 at the earliest. As such, chances are slim to none that Respondent was unaware of the famous METROPOLITAN and METLIFE marks prior to registering the Domain Name. From the WHOIS records and all other indications, Respondent has never been known by the name “Metropolitan” or “Metropolitan Life Insurance Company”, and has never used any trademark or service mark similar to the disputed domain name by which it may have come to be known. As the WHOIS information indicates that the Registrant of this disputed domain name is cloaked by a privacy protection service, there is no apparent relationship to the METROPOLITAN mark. Indeed, Respondent has intentionally chosen the Domain Name as a way of attracting internet users by adopting the famous METROPOLITAN mark in an effort to profit from Complainant’s valuable intellectual property rights. Therefore, Respondent’s registration of the Domain Name cannot be legitimate.
Respondent’s METROPOLITANLIFEINSURANCECOMPANY.COM domain name resolves to a website providing links to Complainant and to third-party websites that offer insurance services in competition with Complainant’s business. Respondent presumably receives remuneration for displaying these links through click-through fees. UDRP Panelists have consistently found that such use by Respondent represents neither a bona fide offering of goods or services per Policy paragraph 4(c)(i), nor a legitimate noncommercial or fair use under paragraph 4(c)(iii). See Metropolitan Life Insurance Company v. Digi Real Estate Foundation, NAF Case No. FA812352 (2006); Metropolitan Life Insurance Company v. Robert Hargraves, NAF Case No. FA1126333 (2008); Metropolitan Life Insurance Company v. Robert Bonds, NAF Case No. FA873143 (2007); Metropolitan Life Insurance Company v. Domain Admin, NAF Case No. 860544 (2007); Metropolitan Life Insurance Company v. Inversiones G.O.S. S.A. c/o George Ring, NAF Case No. 823032 (2006).
Finally, there exists no relationship between Complainant and Respondent that would give rise to any license, permission, or authorization by which Respondent could own or use the Domain Name, which incorporates the mark in its entirety and is confusingly similar to Complainant’s marks. UDRP Rule 3(b) (ix) (2); UDRP Policy 4 (a) (ii).
c. Respondent Registered and Is Using the Domain Name in Bad Faith
Respondent’s actions evidence bad faith in registering and using the Domain Name under 4(b)(iv) of the Policy. The domain name resolves to a website providing links to third-party websites that offer insurance services in competition with Complainant’s business. It is presumed that Respondent generates click-through revenue as a result of the operation of the website at the disputed domain name. Previous Panels have found that such use is an attempt to trade off of the goodwill associated with Complainant’s mark in order to divert Internet users to Respondent’s commercial website, with an intent to deceive Internet users as to the source or affiliation of the domain name. As such, Respondent’s actions are creating a likelihood of confusion with the Complainant’s famous METROPOLITAN and METLIFE marks as to the source, sponsorship, affiliation, or endorsement of its websites, and are considered to be registration and use of the domain name in bad faith pursuant to Policy 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, NAF Case No. FA721969 (2006); Metropolitan Life Insurance Company v. Digi Real Estate Foundation, NAF Case No. FA812352 (2006); Metropolitan Life Insurance Company v. Robert Hargraves, NAF Case No. FA1126333 (2008); Barnes & Noble College Bookstores, Inc. v. Leasure Interactive, WIPO Case No. D2001-1216; Metropolitan Life Insurance Company v. Park Minwoo, NAF Case No. FA863197 (2007); Metropolitan Life Insurance Company v. Yang Kyung Won, NAF Case No. FA863000 (2007).
In addition to the ample evidence above regarding Respondent’s bad faith registration and use of the METROPOLITANLIFEINSURANCECOMPANY.COM domain name, Respondent’s registration of a domain name containing a well-known trademark is also considered to be a clear indication of bad faith in itself, even without considering other elements. See Burberry Limited v. Ruo Chang, WIPO Case No. D2010-1304. From a review of the totality of evidence presented above, it is clear that Complainant has satisfied Policy 4(a)(iii).
Based on all of the above, it is evident that Complainant has met the requirements of the Policy by demonstrating its own legitimate interest in the METROPOLITAN mark, that Respondent has no rights or legitimate interests in Complainant’s famous METROPOLITAN mark, and that Respondent registered and has used the Domain Name METROPOLITANLIFEINSURANCECOMPANY.COM in bad faith. Accordingly, Complainant believes that they are entitled to the remedy requested below.
B. Respondent failed to submit a Response in this proceeding.
Complainant Metropolitan Life Insurance Company is a large global provider of insurance and financial services. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its family of METROPOLITAN marks (e.g., Reg. No. 1,536,727 registered April 25, 1989). Complainant uses the METROPOLITAN mark in its advertising and promotional campaigns to support its insurance business.
Respondent PrivacyProtect.org / Domain Admin registered the disputed domain name on January 1, 2007. The disputed domain name resolves to a website offering links to Complainant and its competitors in the insurance services 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 argues it has established its rights in the METROPOLITAN mark by registering the mark with the USPTO (e.g., Reg. No. 1,536,727 registered April 25, 1989). Previous panels have determined registering a mark with the USPTO establishes rights in the mark under the Policy. 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 Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). This Panel holds Complainant has adequately proven its rights in the METROPOLITAN mark pursuant to Policy ¶4(a)(i).
Complainant also argues Respondent’s disputed domain name is confusingly similar to its METROPOLITAN mark. Respondent’s <metropolitanlifeinsurancecompany.com> domain name includes the entire mark and merely adds the generic top-level domain name (“gTLD”) “.com” and the descriptive terms “life,” “insurance,” and “company.” All of the terms added describe Complainant’s company name, as well as the industry in which it operates. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s METROPOLITAN mark under Policy ¶4(a)(i) because Respondent failed to sufficiently differentiate them. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”); see also Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Nat. Arb. Forum Apr. 23, 2004) (finding that the <millerbeers.com> domain name was confusingly similar to the complainant’s MILLER mark, because “[t]he addition of a descriptive term that describes Complainant’s business to Complainant’s registered mark, does not remove the domain from the realm of confusing similarity with regard to Policy ¶4(a)(i).”).
The Panel finds Policy ¶4(a)(i) satisfied.
Under Policy ¶4(a)(ii), if Complainant meets its initial burden of proof by making a prima facie case showing Respondent’s lack of rights or legitimate interests in the disputed domain name, the burden shifts to Respondent to prove that it does have rights or legitimate interests in said domain name. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel finds Complainant has met its initial burden in this case. Respondent has failed to file a Response, allowing this Panel to assume Respondent lacks rights or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Out of an abundance of caution, the Panel will still examine the entire record in accordance with Policy ¶4(c) before making a determination under Policy ¶4(a)(ii) regarding Respondent’s rights or legitimate interests in the disputed domain name.
Complainant claims Respondent is not commonly known by the disputed domain name. Respondent has offered no evidence to refute this claim. The WHOIS information identifies the registrant of the disputed domain name as “PrivacyProtect.org / Domain Admin,” which appears to be a privacy service acting as a bare trustee (or nominee) for an undisclosed beneficiary. The Panel finds the WHOIS information, when paired with the lack of other evidence on record, is sufficient to warrant a finding that Respondent is not commonly known by the disputed domain name under Policy ¶4(c)(ii). See 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); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant also claims Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent’s disputed domain name resolves to a website offering links to both Complainant and its competitors in the insurance field (e.g., MatrixDirect, Progressive, Paramount, etc.). The Panel finds offering links to Complainant’s competitors does not qualify as 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 ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find 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 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)).
Title to this domain name is being held by a nominee for an undisclosed third party. Under such circumstances, it would be very difficult (but not impossible of course) for the nominee to acquire any rights to the domain name. Any rights the undisclosed beneficiary would have cannot be considered because only the rights of the registered owner can be considered in UDRP proceedings, not the rights of third parties.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant contends Respondent is disrupting its business and the disputed domain name was registered and is being used in bad faith. As mentioned above, the disputed domain name resolves to a website offering links to Complainant’s competitors in the insurance arena. Internet users seeking Complainant may arrive at Respondent’s website and then click through to one of Complainant’s competitors. The user may then purchase an insurance product from the third party rather than Complainant, whom it was seeking in the first place. The Panel finds this use of the disputed domain name disrupts Complainant’s business and suggests the disputed domain name was registered and is being used in bad faith under Policy ¶4(b)(iii) by Respondent. See EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶4(b)(iii)).
Complainant also claims Respondent is attempting to gain commercially from the disputed domain name constituting bad faith registration and use. Respondent resolves the disputed domain name to a website offering links, many of the which ultimately resolve to the websites of Complainant’s competitors. By offering links to analogous services, Respondent is attempting to confuse Internet users arriving at its site as to the sponsorship, affiliation, or endorsement of the website by Complainant. When Internet users click on the links offered, Respondent presumably receives a click-through fee from the linked site. Therefore, the Panel finds Respondent is using the disputed domain name for its own pecuniary benefit, constituting bad faith registration and use under 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 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)(iv) 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).
Respondent is holding the domain name for an undisclosed beneficiary. Clearly, Respondent has no personal rights to the domain and is merely acting as the nominee for its undisclosed beneficiary. As a general rule, there is no business reason for a commercial domain owner to keep its domain ownership confidential. The fact a domain is owned by a nominee for an undisclosed principal creates a rebuttable presumption of bad faith. While that might not be true in certain circumstances (such as for some political or personal purposes where anonymity is important), it is true in commercial circumstances.
The Panel finds Policy ¶4(a)(iii) established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered the <metropolitanlifeinsurancecompany.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: September 30, 2011
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