The Travelers Indemnity Company v. SEBASTIAN STEC
Claim Number: FA1708001745250
Complainant is The Travelers Indemnity Company (“Complainant”), represented by Caroline Ahn of Travelers Indemnity Company, Connecticut, USA. Respondent is SEBASTIAN STEC (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelersinsurance.top>, registered with OVH sas.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 18, 2017; the Forum received payment on August 18, 2017.
On August 23, 2017, OVH sas confirmed by e-mail to the Forum that the <travelersinsurance.top> domain name is registered with OVH sas and that Respondent is the current registrant of the name. OVH sas has verified that Respondent is bound by the OVH sas 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 August 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 2017 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@travelersinsurance.top. Also on August 28, 2017, 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 September 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 is an international property and liability insurance organization. For over 150 years, Complainant has used its TRAVELERS mark to promote its business. Complainant registered the TRAVELERS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,611,053, registered Aug. 28, 1990) and has rights in the mark pursuant to Policy ¶ 4(a)(i). Respondent’s <travelersinsurance.top> domain name is identical to Complainant’s mark because it appends the descriptive term “insurance” and the generic top-level domain (“gTLD”) “.top” to the fully incorporated mark.
Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its mark in any fashion, and Respondent is not commonly known by the <travelersinsurance.top> domain name. Respondent is not using the infringing domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, <travelersinsurance.top> resolves to a parked webpage featuring pay-per-click hyperlinks that compete with Complainant’s insurance business.
Respondent has registered and is using the <travelersinsurance.top> domain name in bad faith. Respondent has offered to sell the domain name to the general public for over $8,000 and attempts to attract Internet traffic and commercially benefit from the goodwill of the TRAVELERS mark by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website. Additionally, Respondent had actual knowledge of Complainant’s rights in the mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is The Travelers Indemnity Company of Hartford, Connecticut, USA. Complainant is the owner of domestic and international registrations for the mark TRAVELERS and related marks constituting the Travelers family of marks. Complainant has continuously used the TRAVELERS mark since at least as early as 1978 in connection with its advertising, training, and consulting in the provision of insurance industry goods and services.
Respondent is Sebastian Stec, of Roubaix, France. Respondent’s registrar’s address is listed as the same. The Panel notes that the <travelersinsurance.top> domain name was registered on or about July 3, 2017.
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(f), 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 (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.”).
Panel Note: Language of the Proceedings
The Panel notes that Complainant requests that the language of this administrative proceeding advance in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Polish language Registration Agreement. Here, Complainant asserts the domain name is entirely comprised of English terms and the resolving website targets an English-speaking population. Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Complainant registered its TRAVELERS mark with the USPTO (e.g. Reg. No. 1,611,053, registered Aug. 28, 1990) and thus contends it has rights in the mark.. Registration of a mark with a trademark authority, such as the USPTO, confers rights in a mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel here finds that Complainant has rights in the TRAVELERS mark.
Complainant asserts that Respondent’s <travelersinsurance.top> domain name is identical to Complainant’s mark because it appends the descriptive term “insurance” and the gTLD “.top” to the fully incorporated mark. The addition of a descriptive word and gTLD are not sufficient to negate confusing similarity between a mark and a domain name. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). The Panel here finds that Respondent’s <travelersinsurance.top> domain name is identical to Complainant’s mark.
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that 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), 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 (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). Complainant has met this burden.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. Complainant claims it has not licensed or otherwise authorized Respondent to use its TRAVELERS mark in any fashion. A lack of contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name can be evidence of a lack of rights and legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Additionally, WHOIS information can be used to support a finding under Policy ¶ 4(c)(ii) that a respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The Panel notes the <travelersinsurance.top> WHOIS information of record lists “SEBTASTIAN STEC” as the registrant. Based on the WHOIS information and Respondent’s failure to address this issue the Panel here finds that the Respondent is not commonly known by <travelersinsurance.top>.
Complainant argues that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use of the disputed domain name. Instead, the infringing domain name resolves to a parked website that generates commissions through the use of pay-per-click advertisements that compete with Complainant’s insurance business. Use of a domain name to display parked pay-per-click hyperlinks is not a bona fide offerings of goods or services or legitimate noncommercial or fair use of a domain name. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Here, Complainant provided screenshots of the <travelersinsurance.top> resolving webpage which features pay-per-click hyperlinks such as “Travelers Insurance,” “Car Insurance Auto,” and “Auto Insurance Companies.” The Panel here finds that Respondent has not made a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant contends that Respondent has registered and used the <travelersinsurance.top> domain name in bad faith by making a general offer to sell the domain name on its resolving website. A general offer to sell a domain name for an amount exceeding the out-of-pocket costs associated with transferring a domain name is evidence of bad faith. See World Wrestling Fed’n Entm’t., Inc. v. Bosman, D99-0001 (WIPO Jan. 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs; see also Randstad Gen. Partner, LLC v. Domains For Sale For You, D2000-0051 (WIPO Mar. 24, 2000) (finding bad faith where the respondent offered the domain name for sale on its website <internetdomains4u.com> for $24,000). Here, the <travelersinsurance.top> resolving webpage displays a message that reads “Buy this domain. The owner of <travelersinsurance.top> is offering it for sale for an asking price of 6800 EUR!”. The Panel notes that 6800 EUR is roughly equivalent to US $8,041. The Panel here finds that Respondent registered and is using the infringing domain name in bad faith.
Complainant asserts that Respondent has registered and is using the <travelersinsurance.top> domain name in bad faith under Policy ¶ 4(b)(iv) by attempting to attract Internet traffic and commercially benefit from the goodwill of the TRAVELERS mark. Use of a disputed domain name to create confusion as to the source, sponsorship, affiliation or endorsement of the content therein constitutes bad faith under Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). Screenshots of Respondent’s resolving webpage feature parked links for “Travelers Insurance,” “Car Insurance Auto,” and “Auto Insurance Companies.” The Panel here finds that Respondent created confusion and therefore registered and used the domain name in bad faith under Policy ¶ 4(b)(iv).
Respondent raises no contentions with regards to Policy ¶ 4(b)(iv).
Complainant has proven this element.
DECISION
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <travelersinsurance.top> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: October 4, 2017
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