Sedgwick Claims Management Services, Inc. v. Nathan Miller / N Miller
Claim Number: FA1409001581083
Complainant is Sedgwick Claims Management Services, Inc. (“Complainant”), Tennessee, USA. Respondent is Nathan Miller / N Miller (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sedgwickus.com>, registered with Tucows Domains 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 23, 2014; the National Arbitration Forum received payment on September 23, 2014.
On September 23, 2014, Tucows Domains Inc. confirmed by e-mail to the National Arbitration Forum that the <sedgwickus.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 September 30, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 20, 2014 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@sedgwickus.com. Also on September 30, 2014, 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 27, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Ho Hyun Nahm, Esq. as Panelist.
On November 6, 2014 the Panel issued a Procedural Order under UDRP Rule 12 where it requested the Complainant to submit evidence supporting its argument that Respondent was using the domain name to send fraudulent e-mails that mislead Internet users by November 13, 2014. The Respondent was given the opportunity to submit a Submission against the Complainant’s possible Additional Submission of evidence within seven (7) days following its receipt of the Complainant’s Additional Submission.
On November 13, 2014, the Complainant submitted an Additional Submission the National Arbitration Forum pursuant to the Panel’s Procedural Order above. The National Arbitration Forum did not receive any Submission from the Respondent by the deadline of November 20, 2014.
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
Complainant uses the SEDGWICK mark to promote its risk management, administration, and insurance services. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,193,182 registered Oct. 6, 1998).
Respondent has no rights or legitimate interests in the <sedgwickus.com> domain name. Respondent is evidently known as “Nathan Miller.” Respondent is using the domain name to send fraudulent e-mails that mislead Internet users.
Respondent registered and uses the <sedgwickus.com> domain name in bad faith. Respondent is using the domain name to promote itself under Complainant’s trademarks and logos and requests Internet users to provide financial information.
B. Respondent
Respondent did not submit a response. The Panel notes that the <sedgwickus.com> domain name was registered September 8, 2014.
C. Additional Submissions
Complainant submitted additional information in support of its argument that Respondent was using the domain name to send fraudulent e-mails that mislead Internet users.
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
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 claims that it uses the SEDGWICK mark to promote its risk management, administration, and insurance services. Complainant argues that the mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 2,193,182 registered Oct. 6, 1998). The Panel agrees that this registration is sufficient evidence of Policy ¶ 4(a)(i) rights in this trademark, given the reliability of USPTO registrations. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
The Panel notes that the <sedgwickus.com> domain name adds the geographic abbreviation “us” and the generic top-level domain (“gTLD”) “.com” to the mark in forming the domain name. The Panel agrees that mere geographic terms and gTLDs do not distinguish a domain name from a mark. See Am. Online, Inc. v. Oxford Univ., FA 114654 (Nat. Arb. Forum Aug. 21, 2002) (“Neither the addition of an ordinary descriptive word nor a geographic qualifier transform Respondent’s domain name into separate and distinct marks for the purpose of a Policy ¶ 4(a)(i) analysis.”). As such, the Panel finds Policy ¶ 4(a)(i) confusing similarity here.
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.”).
Complainant argues that Respondent is evidently known as “Nathan Miller” as shown in the declassified WHOIS records. The Panel agrees that because the WHOIS record does not provide any real guidance as to an association with the <sedgwickus.com> domain name, and Respondent has not submitted a response, there is no basis for making a finding under Policy ¶ 4(c)(ii). See 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 is using the domain name to send fraudulent e-mails that mislead Internet users. According to the Complainant’s Additional Submission supporting its argument, the Panel finds that Respondent’s such phishing behavior is suggestive of Respondent’s lack of Policy ¶ 4(a)(ii) rights. See, e.g., Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel agrees that Complainant need not show bad faith under the Policy ¶ 4(b) factors, so long as bad faith can be shown at registration and through use of the domain name. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant argues that Respondent is using the domain name to promote itself under Complainant’s trademarks and logos and requests Internet users to provide financial information. In light of the Complainant’s Additional Submission supporting the claim of e-mail messages sent through the domain name, the Panel agrees that phishing for personal information through e-mail inquiries is Policy ¶ 4(a)(iii) bad faith use and registration of the domain name. See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sedgwickus.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: November 24, 2014
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