Insure & Go Insurance Services
Limited v. Cenal.com c/o DNS Manager
Claim
Number: FA0507000520056
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.
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.
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.
Complainant
requests that the domain names be transferred from Respondent to Complainant.
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.
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.
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’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).
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).
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).
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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