DECISION

 

American Fidelity Assurance Company v. Mike McMahon

Claim Number: FA2311002071753

 

PARTIES

Complainant is American Fidelity Assurance Company ("Complainant"), represented by Nicole Kinsley of Foley Hoag LLP, Massachusetts, USA. Respondent is Mike McMahon ("Respondent"), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <arnericanfidelity.com>, registered with Wild West Domains, LLC.

 

PANEL

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 20, 2023; Forum received payment on November 20, 2023.

 

On November 20, 2023, Wild West Domains, LLC confirmed by email to Forum that the <arnericanfidelity.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@arnericanfidelity.com. Also on November 27, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 December 19, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is based in Oklahoma City and serves more than one million customers in 49 states and 23 countries. Complainant has used AMERICAN FIDELITY and related marks in connection with insurance and financial services for nearly 60 years. Complainant owns various relevant United States trademark registrations, including registrations for AMERICANFIDELITY.COM and AMERICAN FIDELITY ASSURANCE COMPANY in standard character form.

 

The disputed domain name <arnericanfidelity.com> was registered in November 2023. The name is registered in the name of a privacy registration service on behalf of Respondent. The domain name does not resolve to a website. Complainant states that Respondent is not commonly known by the domain name, is not an agent or licensee of Complainant, and is not authorized to use Complainant's marks.

 

Complainant contends on the above grounds that the disputed domain name <arnericanfidelity.com> is confusingly similar to its AMERICAN FIDELITY marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <arnericanfidelity.com> corresponds to Complainant's registered AMERICANFIDELITY.COM trademark, but for the substitution of the letters "RN" for the letter "M." Such an alteration does not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Morgan Stanley v. Michael Yarbrough, FA 1894537 (Forum May 27, 2020) (finding <rnorgan-stanley.com> confusingly similar to MORGAN STANLEY); American Fidelity Assurance Co. v. Yinsi Baohu Yi Kai Qi(Hidden by Whois Privacy Protection Service), FA 1752218 (Forum Nov. 20, 2017) (finding <americnfidelity.com>, <amerianfidelity.com>, and <americanfideltiy.com> confusingly similar to AMERICANFIDELITY.COM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain name incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain name, nor to have engaged in preparations for such use, suggesting that Respondent lacks rights or legitimate interests in the domain name. See, e.g., Morgan Stanley v. Michael Yarbrough, supra (finding lack of rights or interests in similar circumstances).

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent used a privacy registration service to register a domain name corresponding to a misspelling of Complainant's mark, in an obvious instance of typosquatting. Respondent has neither engaged in any apparent use or preparation for use of the domain name nor participated in this proceeding. The Panel therefore considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant and its marks, perhaps in support of a fraudulent phishing scheme, and that Respondent is maintaining the domain name for that purpose. See, e.g., Morgan Stanley v. Michael Yarbrough, supra (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.

 

DECISION

Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <arnericanfidelity.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: December 22, 2023