Churchill Insurance Company Limited v. WhoisGuard c/o WhoisGuard Protected
Claim Number: FA0702000912323
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.info>, registered with eNom.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On February 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 5, 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.info 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.info> domain name is confusingly similar to Complainant’s CHURCHILL mark.
2. Respondent does not have any rights or legitimate interests in the <churchhill.info> domain name.
3. Respondent registered and used the <churchhill.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Churchill Insurance Company Limited, is one of
the leading providers of insurance in the
Respondent registered the <churchhill.info>
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 asserts rights in the CHURCHILL mark through registration of the mark with the UKPO. The Panel finds that Complainant’s timely registration and subsequent use of the CHURCHILL mark with a governmental agency sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also 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).
Complainant further asserts that Respondent’s <churchhill.info> domain name is
confusingly similar to Complainant’s CHURCHILL mark. The disputed domain name is a common misspelling
of the Complainant’s mark, arrived at by adding the letter “h” to Complainant’s
protected mark. Such a practice is
typically referred to as “typosquatting.”
In addition to the commonly misspelled version of Complainant’s mark,
the disputed domain name also contains the generic top-level domain (“gTLD”)
“.info.” The Panel finds that the
addition of an added letter and a gTLD is insufficient pursuant to Policy ¶ 4(a)(i) and thus the disputed domain name is confusingly
similar to the mark. See
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 Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat.
Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made a prima facie case supporting its claims, the burden shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests); 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 disputed domain name resolves to a website
featuring links to third-party websites that directly compete with
Complainant’s business, presumably with the intent of procuring financial
benefit. The Panel finds that
Respondent’s use is neither a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i)
nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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); see also Wells Fargo & Co. v. Lin
Shun Shing, FA 205699 (Nat. Arb. Forum
Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a
website featuring pop-up advertisements and links to various third-party
websites 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) because the registrant presumably receives
compensation for each misdirected Internet user).
Complainant alleges that Respondent is neither commonly
known by the disputed domain name nor authorized to appropriate Complainant’s
mark in any way. Absent evidence that
would lead to an alternate conclusion, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <churchhill.info> domain name resolves to a website that provides links to third-party competing websites. The Panel finds that the minor typographical variation of Complainant’s mark in Respondent’s disputed domain name contributes to a likelihood of confusion among unsuspecting Internet users, which evinces bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See 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); see also 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).
Moreover, the Panel finds bad
faith registration and use as the disputed domain name is a typosquatted
version of Complainant’s mark, as it contains a common typing error by adding
an extra letter “h” to the mark. See Dermalogica, Inc. v. Domains to Develop,
FA 175201 (Nat. Arb. Forum Sept. 22, 2003)
(finding that the <dermatalogica.com> domain name was a “simple
misspelling” of the complainant's DERMALOGICA mark which indicated
typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)); see also Nextel Commc'ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <churchhill.info> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 21, 2007
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