Ameriprise Financial, Inc. v. Research Inc.
Claim Number: FA0611000843467
Complainant is Ameriprise Financial, Inc. (“Complainant”), represented by Shawn
Diedtrich, of Snell & Wilmer L.L.P., One Arizona
Center, 400 E. Van Buren, Phoenix, AZ 85004-2202. Respondent is Research Inc. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ameriprisehouseinsurance.com>, registered with Moniker Online Services, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 11, 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@ameriprisehouseinsurance.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <ameriprisehouseinsurance.com> domain name is confusingly similar to Complainant’s AMERIPRISE mark.
2. Respondent does not have any rights or legitimate interests in the <ameriprisehouseinsurance.com> domain name.
3. Respondent registered and used the <ameriprisehouseinsurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Ameriprise
Financial, Inc., is a leader in the financial services industry. Complainant was officially launched as a
spin-off company of American Express Financial Corporation in May 2005. Complainant provides mutual fund, life
insurance, auto insurance, and home insurance services to over 2.7 million
clients. Complainant spent hundreds of
millions of dollars on Internet, television, and print advertising of its
AMERIPRISE mark in connection with providing these services. Complainant has filed a trademark application
with the United States Patent and Trademark Office (“USPTO”) for the AMERIPRISE
mark (Serial No. 78/605935 filed
Respondent registered the <ameriprisehouseinsurance.com>
domain name on
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 is not required to own a trademark registration
to establish rights in the AMERIPRISE mark under Policy ¶ 4(a)(i). See
Complainant has established common law rights in the AMERIPRISE mark through continuous and extensive use of the mark since May 2005. Complainant has over 2.7 millions clients worldwide that it provides mutual fund, life insurance, auto insurance, and home insurance services to. In addition, Complainant has spent hundreds of millions of dollars on Internet, television, and print advertising to promote its AMERIPRISE mark. Complainant has also filed a trademark registration application with the USPTO for the AMERIPRISE mark. Therefore, the Panel finds that Complainant’s AMERIPRISE mark has acquired secondary meaning sufficient to establish common law rights in the mark. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also BroadcastAmerica.com, Inc. v. Quo, DTV2000-0001 (WIPO Oct. 4, 2000) (finding that the complainant has common law rights in BROADCASTAMERICA.COM, given extensive use of that mark to identify the complainant as the source of broadcast services over the Internet, and evidence that there is wide recognition with the BROADCASTAMERICA.COM mark among Internet users as to the source of broadcast services).
Respondent’s <ameriprisehouseinsurance.com> domain name is confusingly similar to Complainant’s AMERIPRISE mark as it contains Complainant’s mark in its entirety with the addition of the common terms “house” and “insurance” which have an obvious relationship to Complainant’s business. In Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000), the panel found confusing similarity where the respondent’s domain name combined the complainant’s mark with a generic term that had an obvious relationship to the complainant’s business. See L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word “shop” with the complainant’s registered mark “llbean” does not circumvent the complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy). Accordingly, the Panel finds that the addition of two words that describe services offered by Complainant to Complainant’s mark does not render the disputed domain name sufficiently different from Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <ameriprisehouseinsurance.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then 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 once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights or legitimate interests in the <ameriprisehouseinsurance.com> domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also 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). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Respondent’s WHOIS information does not suggest that Respondent is commonly known by the disputed
domain name. There is also no evidence
in the record to suggest that Respondent is or has ever been known by the
disputed domain name. In Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum
Moreover, Respondent’s <ameriprisehouseinsurance.com> domain
name resolves to a website that displays hyperlinks to various third-party
websites, some of which are in direct competition with Complainant. The Panel infers that Respondent is operating
the disputed domain name and corresponding website for its own commercial gain
by receiving click-through fees for the links displayed on its website. The Panel finds that such use is neither a bona
fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Dot Stop,
FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s
diversionary use of the complainant’s mark to attract Internet users to its own
website, which contained a series of hyperlinks to unrelated websites, was
neither a bona fide offering of goods or services nor a legitimate
noncommercial or fair use of the disputed domain names); see also TM
Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002)
(finding that the respondent’s diversionary use of the complainant’s marks to
send Internet users to a website which displayed a series of links, some of
which linked to the complainant’s competitors, was not a bona fide
offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Based on the uncontested evidence presented by Complainant,
the Panel infers that Respondent receives click-through fees for diverting
Internet users to a website that displays links which resolve to third-party
websites. Additionally, Respondent’s
domain name is capable of creating confusion as to Complainant’s affiliation
with the <ameriprisehouseinsurance.com>
domain name and resulting website. The
Panel finds that such use of the disputed domain name constitutes bad faith
registration and use under Policy ¶ 4(b)(iv).
See Drs. Foster &
Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
The Panel further finds
that Respondent is using the disputed domain name to display links to
third-party websites, some of which are in direct competition with
Complainant. Such use constitutes a
disruption of Complainant’s business and is evidence of bad faith under Policy
¶ 4(b)(iii). See EBAY, Inc. v.
MEOdesigns, D2000-1368 (WIPO 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 Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000)
(finding that the respondent has diverted business from the complainant to a
competitor’s website in violation of Policy ¶ 4(b)(iii)).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ameriprisehouseinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 3, 2007
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