Assurity Life Insurance Company v. DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois Foundation
Claim Number: FA1911001872882
Complainant is Assurity Life Insurance Company (“Complainant”), represented by Meaghan H. Kent of Venable LLP, District of Columbia, United States. Respondent is DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois Foundation (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <assuritylife.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 25, 2019; the Forum received payment on November 25, 2019.
On November 26, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <assuritylife.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 November 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 2019 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 email@example.com. Also on November 27, 2019, 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 December 20, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
Complainant asserts trademark rights in ASSURITY and submits that the domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it has no trademark rights; is not known by the same name; has used the domain name for a website hosting links to competitive services; and has offered the domain for sale.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides insurance services by reference to the trademark ASSURITY;
2. Complainant owns United States Patent and Trademark Office (“USPTO”) Reg. No. 3,070,343, registered March 21, 2006 for the trademark;
3. The disputed domain name was registered on May 13, 2004;
4. The domain name resolves to a website bearing multiple links, some of which relate to the provision of insurance services; and
5. The domain name is for sale for USD$12,000.
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.
No findings required.
No findings required.
In these proceedings there is no necessity to consider more than this third aspect of the Policy. Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith. The Panel finds insufficient evidence to show that the domain name was registered in bad faith.
Registration in bad faith requires proof that it was more likely than not that Respondent knew of and targeted Complainant and its trademark. Issues of timing weigh heavily and fatally against Complainant on this occasion.
The disputed domain name was registered in May 2004. Complainant asserts both registered and common law trademark rights. Complainant owns several USPTO registrations but none earlier in time than Reg. No. 3,070,343. It was filed on September 8, 2004 and registered on March 21, 2006 and so even its filing date postdates the registration of the domain name.
The Complaint states that “Complainant first started use in commerce of its mark ASSURITY in 1996. [see] Annex E, trademark registrations.” Complainant’s assertion of common law rights is premised, not on proof of public awareness and reputation, but on the above statement, which in turn rests on the claim of first use in commerce date of June 12, 1996 shown in Reg. No. 3,070,343. That date is provided to the USPTO by a trademark applicant. There is no proof of a common law trademark by May 2004 when the domain name was registered.
Moreover, although opinions have differed as to whether the equitable doctrine of laches applies to UPRP proceedings, it has been recognized that delay in bringing proceedings is likely to place a higher burden on a complainant attempting to prove a state of affairs long ago.
These facts, taken together with the inherently descriptive character of the words comprising the disputed domain name, are determinative of the matter.
Having failed to establish at least one element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <assuritylife.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: December 21, 2019
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