Allstate Insurance Company v. George Kauffman / GEO. Byers Sons LLC
Claim Number: FA1501001601989
Complainant is Allstate Insurance Company (“Complainant”), represented by Richard S. Stockton of Banner & Witcoff, Ltd., Illinois, USA. Respondent is George Kauffman / GEO. Byers Sons LLC (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <byersallstateinsurance.com>, registered with Register.com, 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 Forum electronically on January 27, 2015; the Forum received payment on January 27, 2015.
On Jan 27, 2015, Register.com, Inc. confirmed by e-mail to the Forum that the <byersallstateinsurance.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On January 27, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2015, by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@byersallstateinsurance.com. Also on January 27, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant uses the ALLSTATE mark in connection with its insurance business. Complainant has registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 761,091, registered December 3, 1963), which establishes rights in the mark. Respondent’s <byersallstateinsurance.com> domain name is confusingly similar to Complainant’s ALLSTATE mark because it incorporates the mark in its entirety and merely adds the term “insurance” which is descriptive of Complainant’s business, and the term “byers”, along with the generic top-level domain (“gTLD”) “.com” to the mark.
Respondent has no rights or legitimate interests in the <byersallstateinsurance.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent received authorization from Complainant to use the ALLSTATE mark. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the resolving page of <byersallstateinsurance.com> displays various hyperlinks which directly compete with Complainant’s offerings.
Respondent is using the disputed domain name in bad faith. Respondent’s behavior in providing hyperlinks to third party competitors of Complainant constitutes bad faith disruption. Further, Respondent is likely profiting from the inclusion of such links and therefore is demonstrating bad faith attraction for commercial gain. Finally, Respondent registered the disputed domain name with actual and/or constructive notice of the mark and Complainant’s rights therein.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Allstate Insurance Company, uses the ALLSTATE mark in connection with its insurance business. Complainant has registered the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 761,091, registered December 3, 1963), which establishes rights in the mark.
Respondent, George Kauffman / GEO. Byers Sons LLC, registered the <byersallstateinsurance.com> domain name on November 5, 2014. The resolving page of <byersallstateinsurance.com> displays various hyperlinks which directly compete with Complainant.
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."
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.
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.”).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., 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 UDRP ¶ 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 lacks rights or legitimate interests in the <byersallstateinsurance.com> domain name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The WHOIS information lists “George Kauffman / GEO. Byers Sons LLC” as registrant of record. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s use of the <byersallstateinsurance.com> domain name is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶ 4(a)(i) and Policy ¶ 4(a)(iii). Respondent’s resolving webpage has hyperlinks to third party websites which directly compete with Complainant, which include the following: “GEICO Official Site”, “Car Insurance - $19 Month”, “Lytell Insurance”, “Top 10 Home Insurance®”, and “Allstate® Motor Club.” Where a respondent has included third party links which direct Internet users to a competitor of Complainant via a confusingly similar domain name, such use is neither a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this 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 or fair use under Policy ¶ 4(c)(iii).”).
Respondent, through its inclusion of competing third party hyperlinks to competitors of Complainant, has engaged in bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent is presumably profiting from the inclusion of third party hyperlinks which compete with Complainant. Respondent’s use of the <byersallstateinsurance.com> domain name is bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website with links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent registered the disputed domain name with actual knowledge of Complainant’s ALLSTATE mark and Complainant’s rights therein. Therefore, Respondent registered and uses the <byersallstateinsurance.com> domain name in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Nat. Arb. Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).").
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <byersallstateinsurance.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 28, 2015
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