Churchill Insurance Company Limited v. Erwan Gamerdinger
Claim Number: FA0702000915227
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 <churchiil.com>, registered with Schlund+Partner Ag.
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 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 12, 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@churchiil.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 <churchiil.com> domain name is confusingly similar to Complainant’s CHURCHILL mark.
2. Respondent does not have any rights or legitimate interests in the <churchiil.com> domain name.
3. Respondent registered and used the <churchiil.com> 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 general insurance
in the
Respondent registered the <churchiil.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.
The Panel finds that Complainant’s trademark registration with the UKPO sufficiently establishes Complainant’s rights in the CHURCHILL mark. See The Royal Bank of Scot. Group plc v. TRB, FA 622345 (Nat. Arb. Forum Feb. 22, 2006) (“The Panel accepts Complainant’s registration of the THE ROYAL BANK OF SCOTLAND mark with the United Kingdom Patent Office as evidence of Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also 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.").
The Panel additionally finds that Respondent’s <churchiil.com> domain name is
confusingly similar to Complainant’s CHURCHILL mark under Policy ¶ 4(a)(i). The substitution
of the letter “i” for the first letter “l” in Complainant’s mark does not
render the disputed domain name sufficiently distinct from Complainant’s mark
under Policy ¶ 4(a)(i). Moreover, the addition of the generic
top-level domain (“gTLD”) “.com” does not render the disputed domain name
sufficiently unique from Complainant’s mark as a gTLD is a required part of
every domain name. See Marriott Int'l, Inc. v. Seocho, FA
149187 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant initially must establish that Respondent lacks
rights or legitimate interests with respect to the <churchiil.com> domain name. However, once Complainant makes a prima facie case, the burden of proof
shifts and Respondent must prove that it has rights or legitimate interests in
the disputed domain name. 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 G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Respondent is using the disputed domain name to display
hyperlinks to third-party websites that are in direct competition with
Complainant. The Panel infers that
Respondent is using the <churchiil.com>
domain name to earn click-through fees and thus finds that Respondent has not
made 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
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 State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept.
27, 2000) (“The unauthorized providing of information and services under a mark
owned by a third party cannot be said to be the bona fide offering of
goods or services.”).
With regards to Policy ¶ 4(c)(ii), Respondent’s WHOIS information does not indicate that Respondent is commonly known by the disputed domain name and there is no other evidence in the record to suggest that Respondent is commonly known by the <churchiil.com> domain name. There is also no evidence that Complainant authorized Respondent to use its mark in any manner. Accordingly, the Panel finds that Respondent is not commonly known by the <churchiil.com> domain name under Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Moreover, Respondent’s disputed domain name is a typosquatted
version of Complainant’s mark, as it takes advantage of a common typing error
that may occur when attempting to type Complainant’s CHURCHILL mark. As such, the nature of the <churchiil.com> domain name evidences
that Respondent lacks rights and legitimate interests in the disputed domain
name. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and
legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
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 the hyperlinks
displayed on the website that resolves from the <churchiil.com> domain name. The Panel also finds that Respondent’s
disputed domain name is capable of creating a likelihood of confusion as to the
source and affiliation of Complainant with the disputed domain name and
corresponding website. Such commercial
benefit from the unauthorized use of Complainant’s mark constitutes bad faith
registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v.
Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding
that the respondent engaged in bad faith registration and use by using a domain
name that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
complainant); see also Drs. Foster &
Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
The Panel further finds that Respondent is using the disputed domain name to redirect Internet users to a website that contains third-party hyperlinks to websites in direct competition with Complainant. Such use constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also 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).
Additionally, the Panel finds bad faith registration and use
under Policy ¶ 4(a)(iii) as the <churchiil.com> domain name is a
typosquatted version of Complainant’s CHURCHILL mark and thus is indicative of
bad faith registration and use. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
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 <churchiil.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 22, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum