Allstate Insurance Company v. Jeremy Ehrenthal / East Coast Health Insurance
Claim Number: FA1201001426920
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Massachusetts, USA. Respondent is Jeremy Ehrenthal / East Coast Health Insurance (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allstateinsurancequotes.org>, registered with GoDaddy.com, Inc. (R91-LROR).
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 January 27, 2012; the National Arbitration Forum received payment on January 30, 2012.
On January 27, 2012, GoDaddy.com, Inc. (R91-LROR) confirmed by e-mail to the National Arbitration Forum that the <allstateinsurancequotes.org> domain name is registered with GoDaddy.com, Inc. (R91-LROR) and that Respondent is the current registrant of the name. GoDaddy.com, Inc. (R91-LROR) has verified that Respondent is bound by the GoDaddy.com, Inc. (R91-LROR) 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 February 1, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2012 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@allstateinsurancequotes.org. Also on February 1, 2012, 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 February 27, 2012, 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 <allstateinsurancequotes.org> domain name is confusingly similar to Complainant’s ALLSTATE mark.
2. Respondent does not have any rights or legitimate interests in the <allstateinsurancequotes.org> domain name.
3. Respondent registered and used the <allstateinsurancequotes.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, provides its customers with a variety of insurance-related products and services. Complainant holds a number of United States Patent and Trademark Office (“USPTO”) registrations for the ALLSTATE mark (e.g. Reg. No. 717,683 registered June 27, 1961).
Respondent, East Coast Health Insurance, registered the <allstateinsurancequotes.org> domain name on July 26, 2011. Respondent uses the disputed domain name to resolve to a website which is meant to appear similar to Complainant’s official site. Respondent’s website, however, solicits visitors’ personal information, including name, address, gender, age, year of birth, and cell phone number.
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 claims rights in the ALLSTATE mark for the purposes of Policy ¶ 4(a)(i). Complainant has provided the Panel with evidence of its registration of the mark with the USPTO (e.g. Reg. No. 717,683 registered June 27, 1961), which previous panels have found to be sufficient to confer rights in the mark under Policy ¶ 4(a)(i). See Clear!Blue Holdings, L.L.C. v. NaviSite, Inc., FA 888071 (Nat. Arb. Forum Mar. 5, 2007) (“The Panel finds that Complainant has established trademark rights in the CLEAR BLUE marks through introduction of the certificates for its U.S. registration for those trademarks. The U.S. Trademark Act is clear that the certificate of registration on the Principal Register, as here, is prima facie evidence of the validity of the registered mark and the registrant's exclusive right to use the mark in commerce in on or in connection with the goods specified in the registration.”); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”). The Panel holds that Complainant has established rights in the ALLSTATE mark pursuant to Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <allstateinsurancequotes.org> domain name is confusingly similar to Complainant’s ALLSTATE mark within the meaning of Policy ¶ 4(a)(i). The disputed domain name wholly includes Complainant’s ALLSTATE mark, adding the descriptive terms “insurance” and “quotes” and the generic top-level domain (“gTLD”) “.org.” Both the terms “insurance” and “quotes” are obvious allusions to Complainant’s insurance business. Previous panels have held that the addition of terms which clearly describe Complainant’s business cannot distinguish a disputed domain name under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). Further, the affixation of a gTLD can never distinguish a disputed domain name. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Accordingly, the Panel concludes that the <allstateinsurancequotes.org> domain name is confusingly similar to Complainant’s ALLSTATE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that the elements of Policy ¶ 4(a)(i) have been satisfied.
Complainant bears the initial burden of presenting a prima facie case according to Policy ¶ 4(a)(ii). Once this has been done, the burden shifts to Respondent to refute Complainant’s allegations. 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). Respondent in this case has failed to provide a Response, which some panels have construed as an admission that Respondent lacks rights or legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). In the interest of fairness, this Panel will nonetheless continue to examine the record according to the Policy ¶ 4(c) factors to determine whether such rights or legitimate interests do in fact exist.
Complainant urges that the Panel find that Respondent is not commonly known by the <allstateinsurancequotes.org> domain name pursuant to Policy ¶ 4(c)(ii). The WHOIS information identifies the domain name registrant as “East Coast Health Insurance.” The Panel finds no support for the assertion that this name bears any material resemblance to the disputed domain name, providing evidence that Respondent is not commonly known by the <allstateinsurancequotes.org> domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply). Furthermore, Complainant provides that it has not authorized Respondent’s use of the ALLSTATE mark in its domain name or otherwise. In the absence of any evidence in the record to support the notion that Respondent is commonly known by the disputed domain name, the Panel must conclude that that Respondent is not commonly known by the <allstateinsurancequotes.org> domain name within the meaning of 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).
Complainant further urges a finding that Respondent’s use of the disputed domain name does not coincide with 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). Respondent uses the disputed domain name to resolve to a website which is meant to appear similar to Complainant’s official site, but which instead solicits visitors’ personal information. Respondent is engaging in a practice known as “phishing,” which has been widely held to violate both Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)). The Panel finds that Respondent’s use of the disputed domain name coincides with a 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).
The Panel finds that the elements of Policy ¶ 4(a)(ii) have been satisfied.
Complainant asserts that Respondent’s registration and use of the disputed domain name represents bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). Complainant alleges that Respondent realizes some sort of financial gain from the operation of its phishing scheme housed at the disputed domain name. Complainant contends that, in order to drive Internet traffic to its website, Respondent uses a confusingly similar domain name, hoping that users will incorrectly assume an affiliation to Complainant’s business. The Panel finds Respondent is misappropriating Complainant’s goodwill in order to lure unsuspecting users to its phishing scheme, which in turn generates revenue for Respondent. The Panel concludes these actions indicate bad faith under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Respondent’s operation of a phishing scheme is also evidence in and of itself of bad faith registration and use under Policy ¶ 4(a)(iii). Previous panels have agreed that the use of a disputed domain name to extract personal information from users who think they are providing the information to complainant demonstrates bad faith registration and use under Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients). The Panel holds that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant also contends that in light of the fame and notoriety of Complainant's ALLSTATE mark, it is inconceivable that Respondent could have registered the <allstateinsurancequotes.org> domain name without at least constructive knowledge of Complainant's rights in the mark. The Panel here finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel has, however, found that actual knowledge of a complainant's rights in a mark prior to the registration of a disputed domain name is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name)." The Panel finds that Respondent did have actual knowledge of Complainant’s mark prior to its registration of the disputed domain name, therefore indicating bad faith registration under Policy ¶ 4(a)(iii).
The Panel finds that the elements of Policy ¶ 4(a)(iii) have 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 <allstateinsurancequotes.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 28, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page