The Travelers Indemnity Company v. Michael Swedlow
Claim Number: FA1903001832600
Complainant is The Travelers Indemnity Company (“Complainant”), represented by Caroline Ahn of The Travelers Indemnity Company, Connecticut, USA. Respondent is Michael Swedlow (“Respondent”), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelerr.net>, registered with Google LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 5, 2019; the Forum received payment on March 5, 2019.
On March 6, 2019, Google LLC confirmed by e-mail to the Forum that the <travelerr.net> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 March 7, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 27, 2019 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@travelerr.net. Also on March 7, 2019, 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 Forum transmitted to the parties a Notification of Respondent Default.
On March 29, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses their mark TRAVELERS to market its property and casualty insurance products.
Complainant holds a registration for the TRAVELERS trademark and service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 1,611,053, registered August 28, 1990, and most recently renewed as of September 1, 2010.
Respondent registered the domain name <travelerr.net> on February 1, 2019.
The domain name is confusingly similar to Complainant’s TRAVELERS mark.
Respondent has not been commonly known by the domain name.
Complainant has not authorized Respondent to use the TRAVELERS mark in any manner.
Respondent’s use of the domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has used the domain name in an e-mail address in order to pose as an employee of Complainant for the fraudulent purpose of soliciting unmerited payments from Complainant’s unsuspecting customers.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant’s rights in the TRAVELERS mark prior to registering the domain name.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000) (In the absence of a Response, it is appropriate to accept as true all allegations of the Complaint).
Complainant has rights in the TRAVELERS trademark and service mark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for … [its mark] … demonstrate[s] its rights in such mark for the purposes of Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <travelerr.net> domain name is confusingly similar to Complainant’s TRAVELERS mark. The domain name contains the mark in its entirety, with only the substitution of the letter “r” for the letter “s” and the addition of the generic Top Level Domain (“gTLD”) “.net.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Klein Tools, Inc. v chenxinqi, FA 1617328 (Forum July 6, 2018) (finding the domain name <klentools.com> confusingly similar to a UDRP complainant’s KLEIN TOOLS mark where it contained the entire mark, merely omitting the letter “l” and adding the gTLD “.com”). As to the latter point, this is because every domain name requires a gTLD.
Under Policy 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <travelerr.net> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <travelerr.net> domain name, and that Complainant has not authorized Respondent to use the TRAVELERS mark in any manner. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Michael Swedlow,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent has used the <travelerr.net> domain name in an e-mail address in order to pose as an employee of Complainant for the fraudulent purpose of soliciting unmerited payments from Complainant’s unsuspecting customers. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that a respondent’s attempt to employ a disputed domain name in order to pass itself off as a UDRP complainant via e-mail messages did not constitute a bona fide offering of goods or services, and that that respondent therefore lacked rights to or legitimate interests in the domain name within the meaning of Policy ¶¶ 4(c)(i)-(iii)). See also Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum August 8, 2017):
[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s fraudulent use of the <travelerr.net> domain name, in a variant of what is commonly known as a “phishing” scheme, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using a disputed domain name in an e-mail address to pass itself off as a UDRP complainant in a phishing scheme evidenced bad faith registration and use of that domain name by a respondent). See also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii),….
And, because Respondent evidently seeks to profit from the confusion caused by its impersonation of Complainant in its use of a domain name that is confusingly similar to Complainant’s TRAVELERS mark, its behavior also falls within the terms of Policy ¶ 4(b)(iv) as a showing of bad faith in the registration and use of the domain name. See Abbvie, Inc. v. James Bulow, supra.
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the TRAVELERS mark when it registered the <travelerr.net> domain name. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [of the rights of a mark holder used in a challenged domain name, and thus bad faith in the registration of that domain name] through the name used for the domain and the use made of it.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <travelerr.net> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 2, 2019
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