SelectQuote Insurance Services v. Tom Dunham
Claim Number: FA1207001454896
Complainant is SelectQuote Insurance Services (“Complainant”), represented by ISCRS Inc., Idaho, USA. Respondent is Tom Dunham (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <selectquotereview.com>, registered with eNom, Inc. ("the Disputed Domain Name").
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.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 24, 2012; the National Arbitration Forum received payment on July 30, 2012.
On July 25, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <selectquotereview.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 August 7, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 27, 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@selectquotereview.com. Also on August 7, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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.
A timely Response was received and determined to be complete on August 27, 2012.
On August 30, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Dawn Osborne of Palmer Biggs Legal 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant's submissions can be summaized as follows:
The Complainant is a company offering price comparisons of insurance quotes since 1985. Due to extensive promotion and advertisement the Complainant is America's number one Term Life sales agency.
Complainant owns the selectquote mark for which it has obtained federal trade mark registrations in the USA. It has a website at <selectquote.com>.
As a result the Complainant owns the exclusive right to use selectquote.com in connection with its online insurance services.
The Disputed Domain Name is nearly identical and confusingly simlar to the Complainant's marks. The Disputed Domain Name contains the Complainant's entire mark plus a generic term "review" meaning that the casual observer is bound to mistake the Disputed Domain Name for a name connected with the Complainant.
Respondent has no rights or legitimate interests in the Disputed Domain Name. It is not commonly known by the Disputed Domain Name. It is not affiliated with the Complainant in any way and has no permission to use the Complainant's mark.
Respondent registered the Disputed Domain Name in 2012 significantly after Complainant's first use in commerce in 1985.
Respondent's typosquatting is, in and of itself, evidence of bad faith. Respondent has caused the websites reachable by the Disputed Domain Name to display the Complainant's mark spelt correctly, serving as further evidence of bad faith removing any doubt as to whether or not the spelling was intentionally designed to improperly capitalize on the Complainant's mark.
The content attached to the Disputed Domain Name is not a free speech commentary but rather a bad faith website carefully designed and intended to hurt the Complainant's business with defamatory comments.
B. Respondent
The Respondent's contentions can be summarized as follows:
Select Quote Review has a plain English meaning- an evaluation of the company named Select Quote. It is commonly understood that a review should be independent to be useful. Therefore, the plain English meaning of the Disputed Domain Name actually implies a lack of association with the Complainant. Any reasonable visitor to the content at the Disputed Domain Name would discern that it is not associated with the Complainant.
The Complainant registered and began posting at the domain <selectquotereviews.com> after the Respondent started his blog at the Disputed Domain Name, so in the unlikely event that anyone confuses the two, it will most likely be as a result of the Complainant starting to use a very similar domain name.
Should the repeated criticism of the Complainant not be a strong enough clue that the web site is not associated with the Complainant, the Respondent has specifically run an article denying association. A new footer also denies association. The "about me" section, clearly associating the site with Tom Durham, has been present since the site's inception. The new content simply serves to reinforce an already very obvious point.
The Disputed Domain Name was registered as a noncommercial criticism site. In any event no sensible member of the public could confuse the Respondent with the Complainant.
The Disputed Domain Name is not typosquatting. No one could accidently type "review" after "SelectQuote."
There has not been and will not be an offer to sell this name. There is no bad faith or squatting behaviour. There is no attempt to prevent the Complainant from reflecting the mark in a domain name and no pattern of registrations. Respondent's use is a nominative fair use. There is no trademark use. Respondent is using the Complainant's mark simply to refer to the Complainant. The fonts and symbols used in relation to the Complainant's mark are not useful. Respondent is not a competitor.
The content of the web site is not defamatory and, in any event, it is not in the scope of this proceeding to determine such a question.
The Complainant is a company offering price comparisons of insurance quotes since 1985.
Complainant has obtained a federal trademark registration in the USA for the SELECT QUOTE mark. It has a website at <selectquote.com>.
Respondent registered the Disputed Domain Name in 2012. It has been used to post content critical of the Complainant.
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."
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.
The Disputed Domain Name contains SELECT QUOTE, the Complainant's registered mark. The Panel finds that the generic term "review" is not sufficiently distinctive to prevent the Disputed Domain Name from being confusingly similar to the Complainant's registered trade mark under the Policy (this not being a particularly difficult test to pass). See Westfield Corp. v Hobbs D2000-0227 (WIPO May 18, 2000)(finding the westfieldshopping.com domain name confusingly similar because the WESTFIELD mark was the dominant element).
As such the Panel finds that the Disputed Domain Name registered by the Respondent is confusingly similar to a trademark or service mark in which Complainant has rights and the first limb of the Policy is satisfied.
However the Complainant has not established a prima facie case in support of its arguments that the Respondent lacks rights and legitiamte interests under the Policy.
The Panel finds as a matter of fact from the evidence that the Disputed Domain Name is being used as a noncommercial criticism site.
Panel agrees with the Respondent that the addition of the term "review" implies a lack of association with the Complainant as a review is customarily written by someone unassociated with the subject being reviewed. The exact name of the Complainant has not been used and the use of a term suggesting independence in the Disputed Domain Name may avoid confusion in fact between the criticism site and the Respondent. In any event the site is very obviously critical of the Complainant. The content is such that confusion as to origin from the Complainant, if this were not dispelled by the Disputed Domain Name itself, will be very quickly dispelled. There is no evidence of commercial gain or any motive for use of the site except as a forum to criticize the Complainant. There is no hint in the evidence that the criticism site is an excuse to cover bad faith, such as registration of multiple domains of this sort. As such the Panel finds that the Respondent has rights or legitimate interests in the Disputed Domain Name. See Baja Marine Corp v. Wheeler Tech, FA 96954 (Nat. Arb. Forum May 17, 2001) (finding that thye respondent has rights and legitimate interests in the domain name where the respondent made a non commercial use and received no funds from users of the site comected to the domain name).
Registration and Use in Bad Faith
The Panel finds that the Respondent has not violated any of the factors listed in the Policy 4(b), nor has he engaged in any content that would constitute bad faith registration and use pursuant to Policy 4 (a)(iii). The Panel agrees with the Respondent that his use is purely nominative. See Chicago Bd. Options Exch. Inc. v. Private, FA 804703 (Nat. Arb. Forum Nov. 29 2006)(finding no bad faith registration and use where the respondent used the complainant's trade mark in its domain name in order to provide information on the complainant's Option Exchange and the respondent was not attempting to brand itself as related to the domain name or to steal business from the Complainant).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <selectquotereview.com> domain name REMAIN WITH Respondent.
Dawn Osborne of Palmer Biggs Legal, Panelist
Dated: 6 September, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page