Rain and Hail Insurance Service, Inc. v. Privacy Administrator / Anonymize, Inc.
Claim Number: FA2001001878393
Complainant is Rain and Hail Insurance Service, Inc. (“Complainant”), represented by Timothy D. Pecsenye of Blank Rome LLP, United States. Respondent is Privacy Administrator / Anonymize, Inc. (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwrainhail.com> (“Domain Name”), registered with Epik Inc..
The undersigned certify that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelists in this proceeding.
Michael A. Albert and Debrett Gordon Lyons as Panelists and Nicholas J.T. Smith, as chair Panelist.
Complainant submitted a Complaint to the Forum electronically on January 9, 2020; the Forum received payment on January 9, 2020.
On January 10, 2020, Epik Inc. confirmed by e-mail to the Forum that the <wwwrainhail.com> domain name is registered with Epik Inc. and that Respondent is the current registrant of the name. Epik Inc. has verified that Respondent is bound by the Epik 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 January 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2020 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@wwwrainhail.com. Also on January 14, 2020, 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 February 12, 2020, pursuant to Complainant's request to have the dispute decided by a three-member Panel, the Forum appointed Michael A. Albert and Debrett Gordon Lyons as Panelists and Nicholas J.T. Smith, as chair Panelist.
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 any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Rain and Hail Insurance Service, Inc., is an insurance provider operating primarily in the area of crop insurance. Complainant has rights in the RAIN AND HAIL mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,591,269, registered August 26, 2014). Respondent’s <wwwrainhail.com> domain name is identical or confusingly similar to Complainant’s mark because it is a typosquatted version of Complainant’s own domain name <rainhail.com> and makes insignificant changes to Complainant’s RAIN AND HAIL mark.
Respondent does not have rights or legitimate interests in the <wwwrainhail.com> domain name because Respondent is not commonly known by the Domain Name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the Domain Name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to competing websites.
Respondent registered and uses the <wwwrainhail.com> domain name in bad faith. Respondent attempts to attract users to its website for commercial gain by creating a likelihood of confusion between itself and Complainant. Additionally, Respondent has actual knowledge of Complainant’s rights in the RAIN AND HAIL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the RAIN AND HAIL mark. The Domain Name is confusingly similar to Complainant’s RAIN AND HAIL mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the 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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the RAIN AND HAIL mark based upon registration of the mark as USPTO Reg. No. 4,591,269. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).).
The Panel finds that the <wwwrainhail.com> domain name is confusingly similar to Complainant’s RAIN AND HAIL mark as it is a typosquatted version of the RAIN AND HAIL mark, simply deleting the “and’ and adding “www” and the “.com” gTLD. This form of misspelling does not prevent a finding of confusing similarity between the Domain Name and the RAIN AND HAIL mark under Policy ¶ 4(a)(i). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”); see also Citizens Financial Group, Inc. v. Paul Taylor, FA 1714579 (Forum Mar. 14, 2017) (“Similarly, addition of the letters “www” to the beginning of a mark in order to form a domain name does not distinguish the domain name for the purposes of a Policy ¶ 4(a)(i) analysis for confusing similarity.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the 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 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (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.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the RAIN AND HAIL mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Privacy Administrator / Anonymize, Inc.” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name resolves to a parking page featuring pay-per-click advertisements, including hyperlinks to entities purporting to offer insurance services in direct competition with Complainant, for which the Respondent is likely to receive revenue. This is not a bona fide offering or a legitimate noncommercial or fair use. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, September 18, 2019, Respondent had actual knowledge of Complainant’s RAIN AND HAIL mark. It would be unlikely for an entity to register a domain name that is almost identical to the RAIN AND HAIL mark and redirect it to a pay-per-click website with links describing the insurance services offered by Complainant absent any awareness of Complainant and its RAIN AND HAIL mark (and intention to capitalize on Complainant’s reputation in its RAIN AND HAIL mark). In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant’s RAIN AND HAIL Mark for commercial gain by using the Domain Name to resolve to a website containing advertisements and links to competitor and other third party websites for commercial gain. Use of an identical or confusingly similar domain name to redirect Internet users to a website containing advertisements and links to third party websites for commercial gain is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See 3M Company v. Nguyen Hoang Son / Bussiness and Marketing, FA1408001575815 (Forum Sept. 18, 2014) (finding that the respondent’s use of the disputed domain name to host sponsored advertisements for Amazon, through which the respondent presumably profited, indicated that the respondent had used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwrainhail.com> domain name be TRANSFERRED from Respondent to Complainant.
Michael A. Albert and Debrett Gordon Lyons, as Panelists
and Nicholas J.T. Smith, as chair Panelist
Dated: February 16, 2020
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