Sentry Insurance a Mutual Company v. George Washere
Claim Number: FA1308001513326
Complainant is Sentry Insurance a Mutual Company (“Complainant”), represented by Eric Skille, Wisconsin, USA. Respondent is George Washere (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sentrysaftytrainer.com>, registered with Enom, Inc.
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 August 6, 2013; the National Arbitration Forum received payment on August 6, 2013.
On August 7, 2013, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <sentrysaftytrainer.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 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2013 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@sentrysaftytrainer.com. Also on August 21, 2013, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2013, 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 <sentrysaftytrainer.com> domain name, the domain name at issue, is confusingly similar to Complainant’s SENTRY mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns and uses the <sentrysafetytrainer.com> domain for providing safety and compliance training for its insurance business and is the owner of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the SENTRY mark (Reg. No. 731,654, registered May 15, 1962). The domain name at is confusingly similar in that it is identical but for one missing letter, the “e” in safety.
Respondent uses the disputed domain name to display links unrelated to Complainant, including links to job listings, cellular phone service providers, and party planning services. Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. Respondent registered the <sentrysaftytrainer.com> domain name on March 18, 2013.
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.
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.”).
Complainant is the owner of a trademark registration with the USPTO for the SENTRY mark (Reg. No. 731,654, registered May 15, 1962). Although Respondent appears to reside in Panama, Policy ¶ 4(a)(i) does not require that Complainant register its mark in the country in which Respondent resides, so long as Complainant registers the mark in some jurisdiction. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, Complainant has established rights in the SENTRY mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
The <sentrysaftytrainer.com> domain name “is confusingly similar in that it is identical but for one missing letter,” the “e” in safety, referring to Complainant's <sentrysafetytrainer.com> domain name. Respondent’s domain name includes Complainant’s SENTRY mark in its entirety and merely adds the misspelled phrase “saftytrainer.” Respondent’s inclusion of a generic phrase does not distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Respondent adds the generic top-level domain (“gTLD”) “.com” to the disputed domain name. Respondent’s addition of a gTLD does nothing to negate confusing similarity between Complainant’s mark and Respondent’s domain name under Policy ¶ 4(a)(i). See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). Accordingly, the Panel finds that Respondent’s <sentrysaftytrainer.com> domain name is confusingly similar to Complainant’s SENTRY mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel notes that the WHOIS information identifies “George Washere” as the registrant of the <sentrysaftytrainer.com> domain name. Additionally, Respondent does not provide any evidence that it is commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <sentrysaftytrainer.com> domain name under Policy ¶ 4(c)(ii), despite Complainant’s failure to present a prima facie argument on this point. See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
Complainant owns and uses the <sentrysafetytrainer.com> domain name for providing safety and compliance training for its insurance business. Respondent uses the disputed domain name to attract Internet users and direct them to links not involving Complainant, insurance, or safety. Instead, Respondent provides unrelated links for other services, including employment listings, cellular phone service, and party planning services. Respondent’s domain name provides unrelated links titled “Job Openings,” “La Crosse Health Plan,” “Free Cell & Min. Program,” and others. In Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003), the panel held that “Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).” Respondent’s use of the <sentrysaftytrainer.com> domain name to provide unrelated links is not a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s SENTRY mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. Respondent uses Complainant’s SENTRY mark to attract Internet users and to direct them to links unrelated to Complainant, insurance, or safety. For example, Respondent instead uses the disputed domain name to provide links for employment listings, cellular phone service, and party planning services. Further, the website associated with Respondent’s <sentrysaftytrainer.com> domain name contains unrelated links titled “Kids Party Packages,” “Financial Aid for Student,” “Free Cell & Min. Program,” among others. Prior panels have held that a respondent’s use of a domain name to provide unrelated links constitutes attraction for commercial gain under Policy ¶ 4(b)(iv). Consequently, this Panel determines that Respondent’s use of the <sentrysaftytrainer.com> domain name to provide unrelated links proves Respondent’s use was in bad faith pursuant to Policy ¶ 4(b)(iv).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sentrysaftytrainer.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 14, 2013
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