Metropolitan Life Insurance Company v. Hyung Kim
Claim Number: FA0608000781874
Complainant is Metropolitan Life Insurance Company (“Complainant”), represented by Heidi C. Constantine, of Metropolitan Life Insurance Company, 1 MetLife Plaza, 27-01 Queens Plaza North, Long Island City, NY 11101. Respondent is Hyung Kim (“Respondent”), 1515 4th Street S., E1215, Minneapolis, MN 55454.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <1800metlife.com> and <800metlife.com>, registered with Register.com, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 21, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 21, 2006.
On August 22, 2006, Register.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <1800metlife.com> and <800metlife.com> domain names are registered with Register.com, Inc. and that Respondent is the current registrant of the names. Register.com, Inc. has verified that Respondent is bound by the Register.com, 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 August 30, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 19, 2006 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@1800metlife.com and postmaster@800metlife.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 22, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 <1800metlife.com> and <800metlife.com> domain names are confusingly similar to Complainant’s METLIFE mark.
2. Respondent does not have any rights or legitimate interests in the <1800metlife.com> and <800metlife.com> domain names.
3. Respondent registered and used the <1800metlife.com> and <800metlife.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Metropolitan Life Insurance Company, is a worldwide leader in the insurance and financial services industry. Complainant has continuously used the METLIFE mark since 1968 in connection with its financial products and services. In North America, Complainant is the largest life insurance provider, serving over thirty-seven million customers and eighty-eight of the Fortune 100 companies. Complainant was ranked number thirty-sixth on the most recent list of Fortune 500 companies and number 194 on the FT Global 500 list. Complainant’s main website is located at the <metlife.com> domain name.
Complainant holds numerous trademark registrations for the METLIFE mark around the world, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,541,862 issued May 30, 1989). Complainant has also registered variations of the METLIFE mark with the USPTO, including: GET MET. IT PAYS (Reg. No. 1,557,174 issued September 19, 1989), MET-REVIEW (Reg. No.1,433,232 issued March 17, 1987), METLINK (Reg. No. 1,598,372 issued May 29, 1990), METLIFE ONLINE (Reg. No. 2,125,636 issued December 30, 1997), METTRUST (Reg. No. 2,393,775 issued October 10, 2000), METNET (Reg. No. 2,243,916 issued May 4, 1999), METLIFE BANK (Reg. No. 2,814,241 issued February 10, 2004; Reg. No. 2,599,438 issued July 23, 2002) and METLIFE 2-9 (Reg. No. 2,416,038 issued May 13, 1997).
Respondent registered the <1800metlife.com> and <800metlife.com> domain names on January 24, 2005. Respondent’s website at the contested domain names contains sponsored links to competing insurance and financial service providers.
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.
Because Complainant has registered the METLIFE mark with the USPTO and other national trademark authorities, the Panel finds that Complainant has sufficiently demonstrated its rights in the mark pursuant to Policy ¶ 4(a)(i). See Thermo Electron Corp et al. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (holding that the complainants established rights in marks because the marks were registered with a trademark authority); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world).
Both contested domain names contain Complainant’s entire
registered METLIFE mark and merely add numerals to the front of the mark. In Am. Online, Inc. v. Oxford University,
FA 104132 (Nat. Arb. Forum Mar. 19, 2002), the panel decided that domain names
that merely added the numeral “7” to the complainant’s AOL mark were
confusingly similar to the mark. As a
result, the mere addition of the numerals “1800” or “800” to Complainant’s
METLIFE mark in the <1800metlife.com> and <800metlife.com>
domain names renders the disputed domain names confusingly similar to the mark
under Policy ¶ 4(a)(i)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain names. Complainant must first make a prima facie case in support of its allegations, and the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the disputed
domain names. See CMGI, Inc. v. Reyes, D2000-0572 (WIPO
Aug. 8, 2000) (finding that the respondent’s failure to produce requested
documentation supports a finding for the complainant); see also Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond).
However, the Panel will now examine the record
to determine if Respondent has rights or legitimate interests under Policy ¶
4(c).
Respondent has registered the <1800metlife.com>
and <800metlife.com> domain names under the name “Hyung Kim,” and there is no other
evidence in the record suggesting that Respondent is commonly known by the
disputed domain names. Therefore,
Respondent is not commonly known by the contested domain names and does not
have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding
that the respondent was not commonly known by the <cigaraficionada.com>
domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other
evidence in the record); see also Coppertown
Drive-Thru Systems, LLC v. Snowden, FA
715089 (Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name).
Moreover, Respondent’s <1800metlife.com> and
<800metlife.com> domain names, which include Complainant’s METLIFE
mark, resolve to a website featuring links to Complainant’s competitors in the
insurance and financial services industries.
In Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003), the panel conclude
that the respondent’s use of a domain name to redirect Internet users to a
website selling goods and services similar to the services the complainant
offered was not a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). In this case, Respondent is
also diverting Internet users seeking Complainant’s services to a web page
displaying links to the websites of Complainant’s competitors. The Panel presumes that Respondent is
receiving click-through fees for redirecting consumers to these websites. Therefore, Respondent is not using the
disputed domain names 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 Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that
the respondent was not using the domain names for a bona fide offering
of goods or services nor a legitimate noncommercial or fair use because the
respondent used the names to divert Internet users to a website that offered
services that competed with those offered by the complainant under its marks).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s registration and use of the disputed domain
names constitutes bad faith under Policy ¶ 4(b)(iv), because Respondent is
using the disputed domain names to maintain a website featuring links to other
insurance and financial service providers offering similar services as
Complainant offers under its METLIFE mark.
In TM Acquisition Corp. v. Carroll,
FA 97035 (Nat. Arb. Forum May 14, 2001), the respondent was using the
<erarealty.com> domain name, which the panel found was confusingly
similar to the complainant’s ERA mark, to redirect Internet users to its own
website offering competing real-estate services. The panel found that such use constituted bad faith registration
and use under Policy ¶ 4(b)(iv), because the respondent was intentionally
attracting Internet users to a direct competitor of the complainant for
commercial gain. Id. Because Respondent is also attempting to
attract Internet users to websites in
direct competition with Complainant for commercial gain, Respondent has
registered and used the <1800metlife.com> and <800metlife.com>
domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex
Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the
respondent registered and used the domain name in bad faith pursuant to Policy
¶ 4(b)(iv) because the respondent was using the confusingly similar domain name
to attract Internet users to its commercial website).
Moreover, the Panel also concludes that Respondent’s use of
the disputed domain names to offer links to the websites of competing insurance
and financial services providers demonstrates that Respondent has registered
and used the disputed domain names for the primary purpose of disrupting
Complainant’s business in violation of Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that
the respondent registered and used the domain name <eebay.com> in bad
faith where the respondent has used the domain name to promote competing
auction sites); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000)
(finding that the respondent registered the domain name in question to disrupt
the business of the complainant, a competitor of the respondent).
The Panel concludes 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 <1800metlife.com> and <800metlife.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 5, 2006
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