Radian Guaranty Inc. v. 21562719 Ont Ltd
Claim Number: FA1007001338064
Complainant is Radian Guaranty Inc. (“Complainant”), represented by James R. Meyer, of SCHNADER HARRISON SEGAL & LEWIS LLP, Pennsylvania, USA. Respondent is 21562719 Ont Ltd (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <radianmortgageinsurance.com>, registered with Fabulous.com Pty 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 29, 2010.
On August 2, 2010, Fabulous.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <radianmortgageinsurance.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 11, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 2010 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@radianmortgageinsurance.com by e-mail. Also on August 11, 2010, 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 7, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 a Written Notice, as defined in Rule 1. 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 <radianmortgageinsurance.com> domain name is confusingly similar to Complainant’s RADIAN mark.
2. Respondent does not have any rights or legitimate interests in the <radianmortgageinsurance.com> domain name.
3. Respondent registered and used the <radianmortgageinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Radian Guaranty Inc., is a provider of residential mortgage insurance services that is headquartered in Pennsylvania, USA. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its RADIAN mark (e.g., Reg. No. 2,892,556 issued October 12, 2004).
Respondent, 21562719 Ont Ltd, registered the <radianmortgageinsurance.com> domain name on February 8, 2007. Respondent’s disputed domain name resolves to a website that displays third-party links to Complainant’s competitors in the mortgage insurance 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.
The Panel finds that Complainant has established rights in its RADIAN mark under Policy ¶ 4(a)(i) through its various trademark registrations. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also 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; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark where the domain name contains Complainant’s mark entirely, and merely adds the descriptive terms “mortgage” and “insurance,” which are terms that describe Complainant’s industry of operation. Further, the Panel finds that the addition of the gTLD “.com” is irrelevant for Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also 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.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant states that Respondent does not have any rights
and legitimate interests in the <radianmortgageinsurance.com>
domain name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a
sufficient prima facie case. Due to Respondent’s failure to respond to the
Complaint, the Panel may assume that Respondent does not have rights and
legitimate interests in the disputed domain name. See
Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO
June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the
Complainant prove the presence of this element (along with the other two), once
a Complainant makes out a prima facie showing, the burden of production
on this factor shifts to the Respondent to rebut the showing by providing
concrete evidence that it has rights to or legitimate interests in the Domain
Name.”); see also Charles Jourdan Holding
AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the
panel to draw adverse inferences from the respondent’s failure to reply to the
complaint). However, the Panel will
examine the record to determine whether Respondent has rights or legitimate
interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <radianmortgageinsurance.com> domain name. Complainant alleges that Respondent is not authorized or licensed to use Complainant’s RADIAN mark. The WHOIS information identifies the domain name registrant as “21562719 Ont Ltd,” which Complainant contends is not similar to Respondent’s <radianmortgageinsurance.com> domain name. Respondent has failed to present evidence that would suggest that Respondent is commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <radianmortgageinsurance.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant alleges that Respondent’s disputed domain name
resolves to a website that displays third-party hyperlinks to competing
mortgage insurance companies and websites, and that Respondent is not using the
disputed domain name in connection with a bona
fide offering of goods or services or a noncommercial or fair use. The Panel agrees and finds that Respondent is
not using the <radianmortgageinsurance.com> domain name for 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 Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum
Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com>
domain name to redirect Internet users to a website featuring links to travel
services that competed with the complainant was not 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <radianmortgageinsurance.com> domain name to attract Internet users to Respondent’s website that features third-party hyperlinks to competing mortgage insurance companies. The Panel infers that such use results in a disruption of Complainant’s business because Internet users seeking Complainant’s company are diverted to competing companies within the mortgage industry. Therefore, the Panel finds that Respondent’s use of the disputed domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Further, the Panel finds that Respondent’s use of the <radianmortgageinsurance.com> domain name to display third-party links to competing mortgage insurance companies, presumably for financial gain, is evidence that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has 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 <radianmortgageinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 16, 2010
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