Allstate Insurance Company v. Daryl Martens
Claim Number: FA1105001390542
Complainant is Allstate Insurance Company (“Complainant”), represented by Geri L. Haight of Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Massachusetts, USA. Respondent is Daryl Martens (“Respondent”), British Columbia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alldtate.com>, registered with Dyandot, LLC.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 24, 2011; the National Arbitration Forum received payment on May 25, 2011.
On May 25, 2011, Dynadot, LLC confirmed by e-mail to the National Arbitration Forum that the <alldtate.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 June 1, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 2011 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@alldtate.com. Also on June 1, 2011, 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 June 24, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) 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 <alldtate.com> domain name is confusingly similar to Complainant’s ALLSTATE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <alldtate.com> domain name.
3. Respondent registered and used the <alldtate.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, is a publicly held personal lines insurer in the United States. Complainant owns a trademark registration for the ALLSTATE.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,164,784 issued October 31, 2006).
Respondent, Daryl Martens, registered the <alldtate.com> domain name on September 18, 2008. The disputed domain name resolves to a pay-per-click link advertising website featuring a variety of links to third-party providers of insurance services, such as Liberty Mutual, MetLife, and Esurance.
Respondent has been the respondent in two other UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See Nationwide Mut. Ins. Co. v. Martens, D2009-1154 (WIPO Oct. 14, 2009); see also Williamson-Dickie Mfg. Co. v. Martens, FA 1269636 (Nat. Arb. Forum Aug. 4, 2009).
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 owns a trademark registration for the ALLSTATE.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,164,784 issued October 31, 2006). The Panel finds that registration of a trademark with the USPTO is sufficient to establish Complainant’s rights in the mark under Policy ¶ 4(a)(i), even when the Respondent operates in a country outside the United States. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant alleges that Respondent’s <alldtate.com> domain name is confusingly similar to Complainant’s ALLSTATE.COM mark because the only difference is the exchange of the letter “s” for the letter “d.” The Panel finds that misspelling Complainant’s mark by changing a single letter is insufficient to prevent a finding of confusing similarity. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar). The Panel thus concludes that Respondent’s <alldtate.com> domain name is confusingly similar to Complainant’s ALLSTATE mark for the purposes of Policy ¶ 4(a)(i).
The Panel holds Policy ¶ 4(a)(i) has been satisfied.
Policy ¶ 4(a)(ii) requires that Complainant first present a prima facie case against Respondent when alleging that Respondent lacks rights and legitimate interests in the disputed domain name. Since the Panel finds that Complainant has adequately established a prima facie case, the burden shifts to Respondent to demonstrate that it does have rights and legitimate interests in the disputed domain name. In light of Respondent’s failure to respond to Complainant’s allegations and carry its burden in proving rights and legitimate interests, the Panel may assume that Respondent does not dispute Complainant’s allegations and accordingly has no rights and legitimate interests in the disputed domain name. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). The Panel elects, however, to consider all the evidence presented to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Complainant contends that Respondent is not commonly known by the <alldtate.com> domain name. The WHOIS information for the disputed domain name indicates that the registrant is “Daryl Martens,” a name which does not reflect any association between Respondent and the disputed domain name. The Panel finds that this fact, without other evidence showing that Respondent is commonly known by the disputed domain name, is evidence that Respondent accordingly lacks rights and legitimate interests in the disputed domain name. See 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); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant argues that Respondent’s <alldtate.com> domain name resolves to a website directory of pay-per-click links advertising insurance services of third-party providers, like MetLife and Esurance. The Panel finds that using the confusingly similar disputed domain name to operate a pay-per-click link directory is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use according to Policy ¶ 4(c)(iii). See Skyhawkes Techns., 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).”); see also Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name).
Complainant asserts that Respondent’s <alldtate.com> domain name consists of a simple typographical error, a misspelling of Complainant’s mark by a single letter. Complainant contends that this action is typosquatting and is intended to capture Complainant’s customers who unknowingly make a mistake when searching for Complainant’s website. The Panel finds that this deliberate use of a typographical error to redirect Complainant’s customers to Respondent’s unaffiliated website constitutes typosquatting and demonstrates that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel holds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been involved in two other UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See Nationwide Mut. Ins. Co. v. Martens, D2009-1154 (WIPO Oct. 14, 2009); see also Williamson-Dickie Mfg. Co. v. Martens, FA 1269636 (Nat. Arb. Forum Aug. 4, 2009). The Panel finds that Respondent’s prior UDRP involvement is evidence that Respondent is engaged in a pattern of bad faith domain name registration intended to prevent the lawful trademark owners from using their marks in commerce. The Panel holds that Respondent has therefore shown bad faith registration and use according to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy ¶ 4(b)(ii) where the respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses).
Complainant alleges that Respondent uses its <alldtate.com> domain name to host a directory of pay-per-click links to competing insurance providers. Complainant argues that this purpose disrupts Complainant’s business by diverting its intending customers to businesses offering the same type of services and products offered by Complainant. The Panel determines that this disruption evidences bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
Complainant contends that Respondent misspells Complainant’s mark in the <alldtate.com> domain name in order to capture Internet users who unknowingly make a typographical error when entering Complainant’s mark. Internet users entering the misspelled mark find themselves directed to Respondent’s web page, which prominently features many links to competitors also providing insurance services and products. The similarity between Complainant’s mark and the disputed domain name and the fact that the same insurance services provided by Complainant are advertised on the resolving website creates a likelihood of confusion between Respondent and Complainant. When any of the Internet users click on one of the pay-per-click links displayed, Respondent receives commercial gain via the click-through fees generated. The Panel thus finds that Respondent uses the disputed domain name to create confusion and redirect Complainant’s customers for profit, which reveals bad faith registration and use according to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also 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).”).
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain name. The Panel finds Respondent’s practice of typosquatting is evidence in and of itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent’s registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
The Panel finds 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 <alldtate.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: June 27, 2011
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