Massachusetts Mutual Life Insurance Company v. Amusing Domains
Claim Number: FA0601000635007
Complainant is Massachusetts Mutual Life Insurance Company (“Complainant”), represented by Anne C. Pareti, of Burns & Levinson LLP, 125 Summer Street, Boston, MA 02110. Respondent is Amusing Domains (“Respondent”), 501 W. Glenoaks Blvd. #311, Glendale, CA 91203.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <mmassmutual.com> and <massmmutual.com>, registered with Go Daddy Software, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 23, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 26, 2006.
On January 23, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <mmassmutual.com> and <massmmutual.com> domain names are registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the names. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 30, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 21, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@mmassmutual.com and postmaster@massmmutual.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 27, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <mmassmutual.com> and <massmmutual.com> domain names are confusingly similar to Complainant’s MASSMUTUAL mark.
2. Respondent does not have any rights or legitimate interests in the <mmassmutual.com> and <massmmutual.com> domain names.
3. Respondent registered and used the <mmassmutual.com> and <massmmutual.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Massachusetts Mutual Life Insurance Company, is a global financial services organization, with more than 1200 offices and ten million clients worldwide. Complainant has registered the MASSMUTUAL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No 1,615,151 issued September 25, 1990). Complainant has also operated a website under the <massmutual.com> domain name since 1995.
Respondent registered the <mmassmutual.com> and <massmmutual.com> domain names on September 29, 2005. Internet users who access these domain names are directed to a website offering links to services related to Complainant’s business, such as insurance, investment options, and retirement planning, as well as services unrelated to Complainant’s business, such as dating and gambling.
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."
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. 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.”).
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.
Complainant, by registering the MASSMUTUAL mark with the USPTO, has established rights in this mark pursuant to Policy ¶ 4(a)(i). Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”).
Respondent’s <mmassmutual.com> and <massmmutual.com>
domain names are both confusingly similar to Complainant’s MASSMUTUAL mark, in
that they both add the letter “m” to Complainant’s mark. Respondent’s domain names are both examples
of “typosquatting”, designed to catch Internet users who inadvertently make a
typographical error, such as typing a double letter instead of a single letter,
when trying to type a domain name.
Because Respondent’s domain names only differ from Complainant’s mark in
such a way as to take advantage of typographical errors, Respondent’s domain
names are confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i). Marriott
Int'l, Inc. v. Seocho, FA 149187 (Nat.
Arb. Forum Apr. 28, 2003) (finding that the respondent's
<marrriott.com> domain name was confusingly similar to the complainant's
MARRIOTT mark); see also Neiman Marcus
Group, Inc. v. Party Night, Inc., FA
114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN
MARCUS mark and was a classic example of
typosquatting, which was evidence that the domain name was confusingly
similar to the mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), once Complainant has made a prima facie case that Respondent does not have rights or legitimate interests in the disputed domain names, the burden shifts to Respondent to prove that it does have rights or legitimate interests in them. Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). Complainant has presented a prima facie case, and the Panel will consider whether the evaluation of the evidence on record demonstrates rights or legitimate interests under Policy ¶ 4(c).
Internet users who access Respondent’s domain names are
presented with links that redirect them to websites offering services which are
similar to those Complainant provides, such as insurance, investment options,
and retirement planning. These websites
also offer links to services unrelated to those Complainant provides, such as
dating and gambling. Respondent
presumably receives payment in exchange for diverting Internet users to the
websites sponsoring these services and is, therefore, capitalizing on Internet
users’ typographical errors for its own financial benefit. Such use is not in connection with a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Bank of Am.
Corp. v. Nw. Free Cmty. Access, FA 180704
(Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert
Internet users seeking Complainant's website to a website of Respondent and for
Respondent's benefit is not a bona fide offering of goods or services under
Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).”); see also WeddingChannel.com Inc. v.
Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the
respondent’s use of the disputed domain name to
redirect Internet users to websites unrelated to the complainant’s mark,
websites where the respondent presumably receives a referral fee for each
misdirected Internet user, was not a bona fide offering of goods or
services as contemplated by the Policy).
There is no evidence on record that Respondent is affiliated with Complainant or that Respondent has ever been commonly known by the disputed domain names. The WHOIS database entry for the <mmassmutual.com> and <massmmutual.com> domain names contains no information implying that Respondent is commonly known by either of these names. The Panel infers that Respondent has no rights or legitimate interests in these names under Policy ¶ 4(c)(ii). Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel assumes that Respondent receives click-through
fees in exchange for diverting Internet users to other websites. Because Respondent’s <mmassmutual.com>
and <massmmutual.com> domain names include Complainant’s
MASSMUTUAL mark and link to websites offering competing products, Internet
users may mistakenly believe that the resulting websites are affiliated with
Complainant. Use of the disputed domain
names in this fashion constitutes bad faith registration and use pursuant to
Policy ¶ 4(b)(iv). Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
Aug. 21, 2000) (finding bad faith where the respondent directed Internet users
seeking the complainant’s site to its own website for commercial gain); see also Gardens
Alive, Inc. v. D&S Linx, FA 203126
(Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the
<my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii)
and (iv) because Respondent is using a domain name that is confusingly similar
to the MYSEASONS mark for commercial benefit by diverting Internet users to the
<thumbgreen.com> website, which sells competing goods and services.”).
Moreover, Respondent’s addition of the letter “m” to Complainant’s mark is a clear attempt to capitalize on typographical errors made by Internet users attempting to reach Complainant’s website. Use of a typosquatted version of Complainant’s mark is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii). K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, demonstrate typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting. . . is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mmassmutual.com> and <massmmutual.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 10, 2006
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