Country Mutual Insurance Company and Country Life Insurance Company v. Bryan Mark
Claim Number: FA2301002026506
Complainant is Country Mutual Insurance Company and Country Life Insurance Company (“Complainant”), represented by Matthew L. Cutler of Harness, Dickey & Pierce, PLC, Missouri. Respondent is Bryan Mark (“Respondent”), Colorado.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <countryfinanciql.com>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on January 5, 2023; Forum received payment on January 5, 2023.
On January 5, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <countryfinanciql.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 30, 2023 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@countryfinanciql.com. Also on January 9, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 3, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In this proceeding there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Complainant alleges that Country Mutual Insurance Company and Country Life Insurance Company are co-owners of the at-issue trademark and in privity with one another. The Panel therefore finds that the two named complainants (herein referred to collectively as Complainant) have a sufficient nexus to each other and to the matters complained of such that they may be treated as if a single entity. Notably, there is no objection by Respondent to the two named complainants proceeding together as if one and Complainant’s relevant assertions are uncontested. See Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003) (treating the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names).
A. Complainant
Complainant contends as follows:
Complainant, Country Mutual Insurance Company and Country Life Insurance Company, offers financial and insurance services.
Complainant has rights in the COUNTRY FINANCIAL mark based on its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <countryfinanciql.com> domain name is identical or confusingly similar to Complainant’s COUNTRY FINANCIAL mark as it incorporates the mark in its entirety while changing the last “a” in “financial” to “q”, while adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <countryfinanciql.com> domain name by engaging in typosquatting. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its COUNTRY FINANCIAL mark in the disputed domain name. Respondent does not use the at-issue domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead hosts pay-per-click links while passing off and engaging in phishing. Additionally, Respondent diverts users while taking advantage of the goodwill associated with Complainant’s mark.
Respondent registered and uses the <countryfinanciql.com> domain name in bad faith by attracting users for commercial gain, passing off, and hosting pay-per-click links. Additionally, Respondent engages in phishing while hosting an inactive page and using a privacy service to hide its identity. Furthermore, Respondent engages in typosquatting and registered the domain name with actual and/or constructive knowledge of Complainant’s rights in the COUNTRY FINANCIAL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the COUNTRY FINANCIAL mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the COUNTRY FINANCIAL trademark.
Respondent uses the domain name to display pay-per-click links and to host email to facilitate fraud.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the COUNTRY FINANCIAL mark with the USPTO, demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <countryfinanciql.com> domain name consists of a recognizable misspelling/mistyping of Complainant’s COUNTRY FINANCIAL trademark where the mark’s second “a” is replaced by a “q” with all followed by the “.com”” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the <countryfinanciql.com> domain name from Complainant’s COUNTRY FINANCIAL mark under the Policy. Therefore, the Panel concludes that Respondent’s <countryfinanciql.com> domain name is confusingly similar to Complainant’s COUNTRY FINANCIAL trademark pursuant to Policy ¶ 4(a)(i). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <countryfinanciql.com> indicates that ““Bryan Mark” is the domain name’s registrant and there is nothing in the record before the Panel that tends to prove that Respondent is known by the <countryfinanciql.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the confusingly similar <countryfinanciql.com> domain name to host pay-per-click links to third parties some of which are related to Complainant’s business. Respondent’s use of <countryfinanciql.com> in this manner is not indicative of a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”)
Respondent has further used the at-issue domain name to host email. By way of email originating at <countryfinanciql.com> that feigns it is from Complainant Respondent injected itself into an email exchange between Complainant and its customer(s). Respondent, disguised as Complainant, then acted to divert payment from one of Complainant’s customers intended for Complainant, to an account controlled by Respondent. Under Policy ¶¶ 4(c)(i) and (iii), passing off in furtherance of a phishing scheme is neither a bona fide offering of goods or services, nor any legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Additionally and as discussed below regarding bad faith, Respondent engages in typosquatting. Respondent’s typosquatting is further evidence showing Respondent’s a lack of rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii),. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
Respondent’s <countryfinanciql.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First and as also discussed above regarding rights and legitimate interests, Respondent uses the at-issue domain name to facilitate an email phishing scheme. Respondent sends deceptive email from <countryfinanciql.com> that impersonates Complainant so that Respondent may fraudulently extract payments from duped third-parties. Such criminal activity indicates Respondent’s bad faith under the Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Emdeon Business Services, LLC v. HR Emdeon Careers, FA1507001629459 (Forum Aug. 14, 2015) (finding that the respondent had engaged in an email phishing scheme indicating bad faith under Policy ¶ 4(a)(iii), where respondent was coordinating the at-issue domain name to send emails to internet users and advising them that they had been selected for a job interview with the complainant and was persuading the users to disclose personal information in the process); see also, Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”).
Next, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into another’s trademark or related mark and incorporates the misspelled mark into a domain name. Here, in forming the at-issue domain name Respondent merely replaces the second “a” in Complainant’s mark with a “q”. Respondent hopes that upon reading the email’s domain name the reader will be fooled into overlooking the misspelling and in falsely believing the domain name is sponsored by COUNTRY FINANCIAL will mistakenly confirm the author of the email is related to, or sponsored by, COUNTRY FINANCIAL. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Additionally, the website addressed by <countryfinanciql.com> features pay-per-click links. By attracting internet users to its links website by associating the site’s domain name with Complainant’s mark, Respondent’s further shows its bad faith under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the COUNTRY FINANCIAL mark at the time it registered <countryfinanciql.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s COUNTRY FINANCIAL trademark; from Respondent’s overt trivial misspelling of the Complainant’s trademark in forming the at-issue domain name and from Respondent’s use of the domain name to perpetrate an email phishing scheme as discussed elsewhere herein. Respondent’s registration and use of <countryfinanciql.com> with knowledge of Complainant’s rights in COUNTRY FINANCIAL further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (FORUM January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”); see also, Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <countryfinanciql.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 4, 2023
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