Churchill Insurance Company Limited v. Neil Charlton
Claim Number: FA0702000912281
Complainant is Churchill Insurance Company Limited (“Complainant”), represented by James
A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <churchhill-insurance.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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 February 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 28, 2007 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@churchhill-insurance.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 <churchhill-insurance.com> domain name is confusingly similar to Complainant’s CHURCHILL mark.
2. Respondent does not have any rights or legitimate interests in the <churchhill-insurance.com> domain name.
3. Respondent registered and used the <churchhill-insurance.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Churchill Insurance Company Limited, has
continuously used the CHURCHILL mark in reference to its financial and
insurance services in the
Respondent’s <churchhill-insurance.com> domain name, which it registered on January 6, 2005, resolves to a commercial search engine website featuring links to the websites of competing financial and insurance companies.
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.
As Complainant holds trademark registrations for the
CHURCHILL mark with the UKPO and OHIM, Complainant has sufficiently
demonstrated its rights in the mark for purposes of Policy ¶ 4(a)(i). See Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum
The <churchhill-insurance.com>
domain name contains a misspelled variation of Complainant’s CHURCHILL mark, a
hyphen, the extra term “insurance,” and the generic-top level domain (“gTLD”)
“.com.” In Gillette Co. v. RFK
Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005), the panel found that
the additions of the term “batteries,” which described the complainant’s
products, and the generic top-level domain “.com” were insufficient to
distinguish the respondent’s <duracellbatteries.com> from the
complainant’s DURACELL mark. In Valpak Direct Marketing
Systems, Inc. v. Manila Industries, Inc., D2006-0714 (WIPO Aug. 17, 2006), the panel found that
the <vallpak.com> domain name, a common misspelling of the complainant’s
VALPAK mark, was confusingly similar to the mark under Policy ¶ 4(a)(i). Moreover, the panel in Health
Devices Corp. v.
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and
legitimate interests in the <churchhill-insurance.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
Document Tech., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6,
2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant
prove the presence of this element (along with the other two), once a
Complainant makes out a prima facie showing, the burden of production on
this factor shifts to the Respondent to rebut the showing by providing concrete
evidence that it has rights to or legitimate interests in the Domain Name.”); see
also ALPITOUR S.p.A. v. Albloushi, FA
888651 (Nat. Arb. Forum Feb. 26, 2007) (finding that Policy ¶ 4(a)(ii) requires
that the complainant must show that the respondent has no rights to or
legitimate interests in the subject domain name and that once the complainant
makes this showing, the burden of production shifts to the respondent to rebut
the complainant’s allegations).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <churchhill-insurance.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 “Neil Charlton,” and there is no other evidence
in the record suggesting that Respondent is commonly known by the contested
domain name. As a result, Respondent has
not established rights or legitimate interests in the disputed domain name
pursuant to 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 Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum
Furthermore, Respondent’s
<churchhill-insurance.com> domain name, which is
confusingly similar to Complainant’s registered CHURCHILL mark, resolves to a
web page containing links to Complainant’s competitors in the financial and
insurance industries. Respondent likely receives click-through fees for diverting
consumers to these websites. Therefore,
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 Expedia, Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of
the <expediate.com> domain name to redirect Internet users to a website
featuring links to travel services that competed with the complainant 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)); see also Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006)
(finding that the respondent’s use of domain names confusingly similar to the
complainant’s WAL-MART mark to divert Internet users seeking the complainant’s
goods and services to websites competing with the complainant did not
constitute 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)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the disputed domain name to manage a web
page displaying links to the websites of Complainant’s competitors. The Panel infers that Respondent receives
click-through fees for each consumer it diverts to these websites. The panel in Allianz of Am. Corp. v. Bond,
FA 680624 (Nat. Arb. Forum
Because Respondent’s website at the disputed domain name contains links to the websites of Complainant’s competitors, the Panel finds that Respondent has registered and used the <churchhill-insurance.com> domain name for the primary purpose of disrupting Complainant’s business in violation of Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed doamin name to operate a commercial search engine with links to the complainant’s competitors); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with Complainant’s business).
Furthermore, Respondent’s
confusingly similar <churchhill-insurance.com>
domain name contains a common misspelling of Complainant’s CHURCHILL mark,
which provides evidence of typosquatting.
Typosquatting is an additional factor in the consideration of bad faith
registration and use under Policy ¶ 4(a)(iii).
See Microsoft Corp. v. Domain Registration
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 <churchhill-insurance.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 12, 2007
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