State Farm Mutual Automobile Insurance Company v. Kimberly Huddleston
Claim Number: FA0609000788284
Complainant is State Farm Mutual Automobile Insurance Company (“Complainant”), represented by Janice K. Forrest, of State Farm Mutual Automobile Insurance Company, One State Farm Plaza, A-3, Bloomington, IL 61710. Respondent is Kimberly Huddleston (“Respondent”), 3815 Hano Trail, Granbury, TX 76048.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <statefarmcontractors.com>, registered with Go Daddy Software, 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 September 1, 2006; the National Arbitration Forum received a hard copy of the Complaint on September 5, 2006.
On September 5, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <statefarmcontractors.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 September 7, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 27, 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@statefarmcontractors.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 29, 2006, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <statefarmcontractors.com> domain name is confusingly similar to Complainant’s STATE FARM mark.
2. Respondent does not have any rights or legitimate interests in the <statefarmcontractors.com> domain name.
3. Respondent registered and used the <statefarmcontractors.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, State Farm Mutual Automobile Insurance Company, has been providing financial and insurance services under the STATE FARM mark since 1930. Complainant has registered the STATE FARM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,979,585 issued June 11, 1996.)
Respondent’s <statefarmcontractors.com> domain name, which was registered on April 22, 2006, resolves to a parked web page displaying various links to third-party websites, some of which resolve to the websites of Complainant’s competitors in the financial and insurance services industry.
On September 7, 2006, the Forum received the following email from Eddie Huddleston:
I am eddie huddleston, i am responsible for buying this domain as my wife kimberly does not use a computer. i also learned i was in the wrong for buying this domain name and cancelled it on godaddy prior to any dispute being filed. please forgive my ignorance in this matter.
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 has established rights in the STATE FARM mark through registration of the mark with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
By merely adding a common term to the end of Complainant’s
registered STATE FARM mark, Respondent has failed to sufficiently distinguish
the <statefarmcontractors.com> domain name from Complainant’s
mark. Therefore, the disputed domain
name is confusingly similar to the mark under Policy ¶ 4(a)(i). See Experian Info. Solutions, Inc. v.
Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several
domain names incorporating the complainant’s entire EXPERIAN mark and merely
adding the term “credit” were confusingly similar to the complainant’s mark); see
also Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001)
(finding that the respondent’s domain names were confusingly similar to
Complainant’s GOOGLE mark where the respondent merely added common terms such
as “buy” or “gear” to the end).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and
legitimate interests in the <statefarmcontractors.com> domain
name. Complainant must first make a prima
facie case in support of its allegations, and then the burden shifts to
Respondent to show it does have rights or legitimate interests pursuant to
Policy ¶ 4(a)(ii). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that,
where the complainant has asserted that the respondent has no rights or
legitimate interests with respect to the domain name, it is incumbent on the
respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Hanna-Barbera Productions, Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
Aug. 18, 2006) (holding that the complainant must first make a prima facie
case that the respondent lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent
to show that it does have rights or legitimate interests in a domain name).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <statefarmcontractors.com>
domain name. See 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); see also BIC Deutschland GmbH & Co. KG v. Tweed,
D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has
failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c)
of the Policy, any rights or legitimate interests in the domain name”).
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 domain name under the name “Kimberly
Huddleston,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <statefarmcontractors.com> domain
name. Thus, Respondent has not
established rights or legitimate interests in the <statefarmcontractors.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See 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); see also Instron Corp. v. Kaner, FA 768859 (Sept.
21, 2006) (finding that the respondent was not commonly known by the
<shoredurometer.com> and <shoredurometer.com> domain names because
the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic
Equip't as the registrant of the disputed domain name and there was no other
evidence in the record to suggest that the respondent was commonly known by the
domain names in dispute).
Moreover, Respondent’s <statefarmcontractors.com> domain
name, which includes Complainant’s STATE FARM mark, resolves to a commercial
web directory providing links to insurance companies in direct competition with
Complainant. Because Respondent is
diverting Internet users seeking Complainant’s services to competing websites
for commercial gain, presumably in the form of click-through fees, Respondent’s
use of the disputed domain name does not constitute a bona fide offering
of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial fair
use pursuant to Policy ¶ 4(c)(iii). See
Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that
the respondent was not using the domain name within the parameters of Policy ¶
4(c)(i) or (iii) because the respondent used the domain name to take advantage
of the complainant's mark by diverting Internet users to a competing commercial
site); see also eBay Inc. v. Hong, D2000-1633 (WIPO Jan.
18, 2001) (stating that the respondent’s use of the complainant’s entire mark
in domain names makes it difficult to infer a legitimate use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
In addition, Respondent’s registration and use of the disputed domain name to redirect Internet users to a commercial web directory featuring links to Complainant’s direct competitors in the insurance industry constitutes bad faith under Policy ¶ 4(b)(iv). 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. In this case, the Panel infers that Respondent receives click-through fees for each consumer it diverts to websites competing with Complainant. Accordingly, the Panel finds that Respondent is taking advantage of the confusing similarity between the <statefarmcontractors.com> domain name and Complainant’s STATE FARM mark in order to profit from the goodwill associated with the mark, in violation of Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent).
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 <statefarmcontractors.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 13, 2006
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