national arbitration forum

 

DECISION

 

The Travelers Indemnity Company v. Fundacion Private Whois / Domain Administrator

Claim Number: FA1309001519073

 

PARTIES

Complainant is The Travelers Indemnity Company (“Complainant”), represented by David M. Kelly of Kelly IP, LLP, Washington, D.C., USA.  Respondent is Fundacion Private Whois / Domain Administrator (“Respondent”), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amptravelers.com>, registered with INTERNET.BS CORP.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on September 11, 2013; the National Arbitration Forum received payment on September 11, 2013.

 

On September 12, 2013, INTERNET.BS CORP. confirmed by e-mail to the National Arbitration Forum that the <amptravelers.com> domain name is registered with INTERNET.BS CORP. and that Respondent is the current registrant of the names.  INTERNET.BS CORP. has verified that Respondent is bound by the INTERNET.BS CORP. 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 September 12, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 2, 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@amptravelers.com.  Also on September 12, 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 October 8, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <amptravelers.com> domain name, the domain name at issue, is confusingly similar to Complainant’s TRAVELLERS 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.

 

FINDINGS

Complainant has rights in the TRAVELERS mark, used in connection with insurance products and services and is the owner of registrations for the TRAVELERS mark (e.g., Reg. No. 1,611,053 registered August 28, 1990).

Respondent’s <amptravelers.com> domain name is confusingly similar to Complainant’s TRAVELERS mark. The disputed domain name includes Complainant’s mark in its entirety, along with the letters “amp,” which can be viewed as additional letters or shorthand for the term “automatic payment.” Additionally, the disputed domain name includes the generic top level domain (“gTLD”) “.com.”

 

Respondent is not commonly known by the disputed domain, and Complainant has never authorized Respondent to use its TRAVELERS mark in any way.  The <amptravelers.com> domain name resolves to a website displaying pay-per-click advertisements for directly competing insurance companies.  Respondent has made an offer to sell the disputed domain name on Sedo’s website and the WHOIS record for the domain name.  Respondent is disrupting Complainant’s business by using the disputed domain name to feature advertisements of Complainant’s competitors.  Respondent is using the disputed domain to intentionally attract Internet users by creating a likelihood of confusion with Complainant’s TRAVELERS mark for Respondent’s commercial gain via pay-per-click advertisements.  Respondent’s conduct constitutes typosquatting.  Respondent had  knowledge of Complainant’s TRAVELERS mark when it registered the <amptravelers.com> domain name because Complainant’s mark has been in use for nearly 150 years, and the resolving website features advertisements of competing insurance services.  Respondent registered the <amptravelers.com> domain name on March 16, 2006.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant has rights in the TRAVELERS mark which originate from its USPTO registration  for the TRAVELERS mark (e.g., Reg. No. 1,611,053 registered August 28, 1990). The panel in Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005), held that the complainant’s rights in its mark were established under the Policy through its registration of the mark with the USPTO. Likewise, Complainant’s USPTO registration establishes its rights in the TRAVELERS mark for the purposes of Policy ¶ 4(a)(i).

 

The <amptravelers.com> domain name is confusingly similar to Complainant’s registered TRAVELERS mark, because it is comprised of Complainant’s mark in its entirety, with the addition of the word “amp.” Complainant asserts that “amp” can be viewed either as additional indiscriminate letters, or shorthand for the term “automatic payment,” which heightens confusing similarity due to the nature of Complainant’s business in offering automatic payment services to its customers via the <travelers.com> domain name.  The generic top-level domain (“gTLD”) “.com” fails to distinguish the domain name from the mark.  Regardless of the meaning of the letters “amp,” the <amptravelers.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i), due to the marks presence in the domain name, with the addition of the letters “amp,” and the gTLD “.com.” See Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000) (finding that <kelsonmd.com> is identical or confusingly similar to the complainant’s federally registered service mark, KELSON); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

 

The Panel finds that Policy ¶ 4(a)(i) has been established. 

 

Rights or Legitimate Interests

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.”).

 

Respondent is not and has not been commonly known by the disputed domain name, and no evidence in the record demonstrates otherwise. Respondent is not a licensee of Complainant and has not authorized Respondent to register or use the domain name or the TRAVELERS mark. The WHOIS information identifies “Fundacion Private Whois / Domain Administrator” as the registrant, and the Panel finds that the registrant information bears no similarity to the <amptravelers.com> domain name.  Based on Complainant’s claims that Respondent is not licensed to use the TRAVELERS mark, and due to the WHOIS information, Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).

 

Respondent established a website associated with the <amptravelers.com> domain name that features sponsored-link advertisements for directly competing insurance companies.  The Panel notes it is a screen shot listing several insurance websites, including “Travelers Insurance Company,” “Metlife Insurance,” and “Geico Insurance.”  Causing the <amptravelers.com> domain name to resolve to a website hosting hyperlinks that lead to either Complainant’s own site, or those of Complainant’s competitors, fails to demonstrate a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products.  The Panel finds that this use of the disputed domain name does 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).”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been established. 

 

Registration and Use in Bad Faith

Respondent attempts to sell the <amptravelers.com> domain name for a sum in excess of the documented out-of-pocket expenses. Complainant has submitted a screen shot of the registrar’s WHOIS page for the <amptravelers.com> domain name, which states “This premium domain is for sale in partnership with Sedo!” This listing of the disputed domain name for sale is evidence of Respondent’s Policy ¶ 4(b)(i) bad faith registration and use. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).

 

Bad faith registration and use are further evident by Respondent’s purposeful disruption of Complainant’s business by using the disputed domain name to establish a website featuring Complainant’s competitors, and hosting links leading to their corresponding websites. The panel in Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007), held that the respondent’s website featured hyperlinks to competing websites, including a link to the complainant’s website, and such use constituted bad faith disruption.  Respondent demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iii) due to the resulting disruption of Complainant’s business.

 

Respondent’s registration and use of the <amptravelers.com> domain name meets the grounds of bad faith under Policy ¶ 4(b)(iv), demonstrated by Respondent’s efforts to intentionally attract Internet users to the resolving website in order to make a commercial gain, by creating a likelihood of confusion with Complainant’s TRAVELERS mark.  Previous panels have agreed that a respondent’s bad faith can be shown by using a confusingly similar domain name to create a likelihood of confusion with the complainant’s mark in order to draw consumers to the resolving website, and seek to make a profit from such use. See 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).  By hosting competing hyperlinks at the resolving website, Respondent aims to capitalize on consumer confusion between Complainant and the disputed domain name, and therefore the Panel finds that Respondent registered and uses the <amptravelers.com> domain name in bad faith under Policy ¶ 4(b)(iv).

 

Respondent endeavors to capture Internet users who omit the period in Complainant’s URL at <amp.travelers.com>.  Such registration amounts to typosquatting. Typosquatting generally consists of registering an intentionally misspelled version of a complainant’s mark within a domain name.  Lastly, Respondent had knowledge of Complainant’s rights in the TRAVELERS mark when it registered the <amptravelers.com> domain name, based on the fact that the TRAVELERS mark has been in use for nearly 150 years, is a reputable and famous mark, and the domain name consists of a typosquatted version of Complainant’s mark.  Further, by advertising Complainant’s competitors at the resolving website, Respondent demonstrates clear awareness of Complainant’s mark, used in connection with the insurance industry. The link between the content on the resolving website and Complainant’s business is sufficient to make a finding that Respondent registered the <amptravelers.com> domain name with actual knowledge of Complainant’s rights in the TRAVELERS mark, and consequently registered the domain name in bad faith under Policy ¶ 4(a)(iii).  See Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum September 5, 2007) (stating that Respondent’s actual knowledge of the complainant’s mark when registering the disputed domain name results necessarily in a finding of bad faith registration).

 

The Panel finds that Policy ¶ 4(a)(iii) has been established. 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <amptravelers.com> domain name be TRANSFERRED from Respondent to Complainant.

 

James A. Carmody, Esq., Panelist

Dated:  October 14, 2013

 

 

 

 

Click Here to return to the main Domain Decisions Page.

Click Here to return to our Home Page