national arbitration forum

 

DECISION

 

Insure & Go Insurance Services Limited v. Cenal.com c/o DNS Manager

Claim Number:  FA0507000520056

 

PARTIES

Complainant, Insure & Go Insurance Services Limited (“Complainant”), is represented by Adam Taylor of Adlex Solicitors, 76A Belsize Lane, London, NW3 5BJ, United Kingdom.  Respondent is Cenal.com c/o DNS Manager (“Respondent”), 3705 Bank of America Tower, 12 Harcourt Road, Central, 3705, HK.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <insurenadgo.com> and <insurendgo.com>, registered with Enom, Inc.

 

PANEL

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.

 

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 19, 2005; the National Arbitration Forum received a hard copy of the Complaint on July 21, 2005.

 

On July 20, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <insurenadgo.com>and <insurendgo.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names.  Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 July 27, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 16, 2005 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@insurenadgo.com and postmaster@insurendgo.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On August 22, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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.”  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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <insurenadgo.com> and <insurendgo.com> domain names are confusingly similar to Complainant’s INSURE & GO mark.

 

2.      Respondent does not have any rights or legitimate interests in the <insurenadgo.com> and <insurendgo.com> domain names.

 

3.      Respondent registered and used the <insurenadgo.com> and <insurendgo.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Insure & Go Insurance Services Limited, is a direct travel insurance provider.  Complainant’s services primarily focus on the travel market, but also include other forms of insurance such as home, car, life, and commercial insurance.  Complainant commenced its business in England and Wales in 1999 under the company number 4056769.  Complainant holds a registration for its INSURE & GO mark with United Kingdom Patent Office (Reg. No. E2516652 issued August 11, 2003).  In 2002 and 2003, Complainant’s insurance premiums generated profits of $9.4 million and $20.8 million respectively.  In 2004, Complainant sold 550,885 insurance polices.  Complainant holds itself out as the largest direct travel insurance provider in the United Kingdom.

 

Complainant spends millions of dollars annually to promote its services through advertising in national and local newspapers, magazines, outdoor poster campaigns, tube card advertisements, television airtime advertising, radio commercials, and online promotions and sponsorship of events.  As a result of its efforts, Complainant won the “Large Broker of the Year” award at the prestigious Insurance Times Awards 2004.

 

Respondent registered the <insurenadgo.com> and <insurendgo.com> domain names on October 4, 2004.  By October 18, 2004, the disputed domain names resolved to websites containing sponsored and/or affiliate links to various companies offering travel and other insurance services.  After Complainant sent Respondent a cease and desist letter, Respondent offered to sell the disputed domain name registrations to Complainant for 500 Euros each.  Subsequent to its offer to sell the disputed domain name registrations, Respondent redirected the disputed domain names to Complainant’s site.  However, on March 2, 2005, Respondent changed the websites to display the aforementioned links, similar to the original websites.  Complainant then offered to purchase the domain name registrations for $750 each, but received a response that Respondent was unwilling to sell the domain name registrations for less than $1,200.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

Complainant’s registration for its INSURE & GO mark with the United Kingdom Patent Office is sufficient to establish Complainant’s rights in the mark.  See 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); 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 avers that Respondent’s <insurenadgo.com> and <insurendgo.com> domain names are confusingly similar to Complainant’s INSURE & GO mark.  The <insurenadgo.com> domain name replaces the ampersand symbol (&) with the letters “n,” “a,” and “d.”  The <insurendgo.com> domain name replaces the ampersand symbol with the letters “n” and “d”.  The Panel infers that these letters are a misspelling of the word “and,” which is identical in meaning to the ampersand symbol.  The Panel finds that replacing the ampersand symbol with a misspelled version of the word “and” is not sufficient to distinguish Respondent’s domain name from Complainant’s mark.  See Wright & Lato, Inc. v. Epstein, D2000-0621 (WIPO Sept. 2, 2000) (finding that the <wrightandlato.com> domain name is identical to the complainant’s WRIGHT & LATO mark, because the ampersand symbol (&) is not reproducible in a URL); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com> is confusingly similar to the complainant's PIER 1 mark).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i). 

 

Rights or Legitimate Interests

 

Complainant asserts that Respondent does not have rights or legitimate interests in the <insurenadgo.com> and <insurendgo.com> domain names.  Complainant’s assertion establishes a prima facie case and shifts the burden to Respondent.  To meet its burden, Respondent must provide the Panel with evidence that it does have rights or legitimate interests in the disputed domain name.  Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):

 

Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.

 

Id.; see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).  The Panel will analyze whether Respondent could meet its burden of establishing rights or legitimate interests for purposes of Policy ¶ 4(a)(ii).

 

Complainant argues that Respondent is not commonly known by the disputed domain names.  Without a response from Respondent, the Panel accepts as true Complainant’s allegation.  See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).  Moreover, Respondent’s WHOIS information suggests that Respondent is known as “Cenal.com.”  Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain name and does not have rights or legitimate interests under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

 

Complainant provides evidence that Respondent benefits from the confusing similarity of the <insurenadgo.com> and <insurendgo.com> domain names by displaying links to insurance-related services and receiving pay-per-click fees from confused Internet users who click on these links.  Complainant argues that Respondent’s links directly compete with Complainant.  Because Respondent did not respond, the Panel treats Complainant’s arguments as true.  See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed.  In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).  Thus, the Panel concludes that Respondent is not using the disputed domain name in connection with 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 DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ultimate Elecs., Inc. v. Nichols, FA 195683 (Nat. Arb. Forum Oct. 27, 2003) (finding that the respondent's “use of the domain name (and Complainant’s mark) to sell products in competition with Complainant demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the name”).

 

Moreover, because Respondent is purposely misspelling Complainant’s mark, it is engaging in the practice of typosquatting.  The Panel holds that such typosquatting indicates that Respondent lacks rights and legitimate interests for purposes of Policy ¶ 4(a)(ii).  See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). 

 

Consequently, the Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

The Panel finds that Respondent’s offer to sell the disputed domain name registrations for an excessive price is evidence that Respondent registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(i).  See Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale); see also Banca Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000) (finding bad faith where the respondent offered the domain names for sale).

 

Complainant argues that Respondent is using the disputed domain names to divert Internet users to websites that feature links to goods and services relating to insurance and to profit from diverting such Internet users to various websites.  The Panel holds Respondent is creating a likelihood of confusion for its own commercial gain.  The Panel concludes that such use is evidence of bad faith use and registration under Policy ¶ 4(b)(iv).  See Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); see also MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).

 

Respondent’s typosquatting provides further evidence that Respondent registered and used the disputed domain names in bad faith for purposes of Policy ¶ 4(a)(iii).  See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <insurenadgo.com> and <insurendgo.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  September 1, 2005

 

 

 

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