Ardonagh Services Limited v. hetty peteers
Claim Number: FA1906001847279
Complainant is Ardonagh Services Limited (“Complainant”), represented by Martin Schneider of Ardonagh Services Limited, United Kingdom. Respondent is hetty peteers (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <towergateinsurance.properties>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 11, 2019; the Forum received payment on June 11, 2019.
On June 11, 2019, NameCheap, Inc. confirmed by e-mail addressed to the Forum that the <towergateinsurance.properties> 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 June 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 2, 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 postmaster@towergateinsurance.properties. Also, on June 12, 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 July 8, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates in the insurance services industry.
Complainant holds a registration for the TOWERGATE INSURANCE trade mark, which is on file with the United Kingdom Intellectual Property Office (“UKIPO”) as Registry No. UK00002595434, registered January 6, 2012).
Respondent registered the domain name <towergateinsurance.properties> on February 25, 2019.
The domain name is substantively identical, and therefore confusingly similar, to Complainant’s TOWERGATE INSURANCE trade mark.
Complainant has not licensed or otherwise consented to the registration or use of the domain name by Respondent.
Respondent does not use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The website resolving from the domain name advertises an intermediation service for property rentals purportedly offered by Complainant.
Neither Complainant nor any of its affiliated businesses offers such a service.
The same website also displays the names and logos of major United Kingdom insurers with whom Complainant does business, but which likewise do not offer the advertised service.
On information received by Complainant from Internet users who have visited Respondent’s resolving website, some such users have paid money to Respondent for the purported services.
Respondent has no rights to or legitimate interests in the domain name.
Respondent uses the domain name to pass itself off as Complainant online in furtherance of a scheme to defraud Internet users by which it seeks to profit from the confusion caused by the domain name as to the possibility of Complainant’s association with it.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical and confusingly similar to a trade mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent in bad faith.
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has rights in the TOWERGATE INSURANCE trade mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trade mark authority, the UKIPO. See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding that registration of a mark with the UKIPO was sufficient to establish a UDRP complainant’s rights in that mark under Policy ¶ 4(a)(i)).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <towergateinsurance.properties> domain name is confusingly similar to Complainant’s TOWERGATE INSURANCE mark. The domain name contains the mark in its entirety, with only the deletion of the space between its terms and the addition of the generic Top Level Domain (“gTLD”) “.properties.” These alterations of the mark, made in forming the domain name, do not save it from the realm of identity or confusing similarity under the standards of the Policy. See, for example, Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015):
Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶ 4(a)(i) analysis.
See also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the contested domain name, <towergateinsurance.properties>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the challenged domain name, and that Complainant has not licensed or otherwise consented to the registration or use of the <towergateinsurance.properties> domain name by Respondent. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “hetty peteers,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that the website resolving from the <towergateinsurance.properties> domain name advertises an intermediation service for property rentals purportedly offered by Complainant, that neither Complainant nor any of its affiliated businesses offers such a service, that the same website also displays the names and logos of major United Kingdom insurers with whom Complainant does business, but which likewise do not offer the advertised service, and that, on information received by Complainant from Internet users who have visited Respondent’s resolving website, at least some such users have paid money to Respondent for the purported service, so that it appears that Respondent uses the domain name to pass itself off as Complainant online in furtherance of a scheme to defraud Internet users by which it seeks to profit from the confusion caused by the domain name as to the possibility of Complainant’s association with it. This use is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (finding that a respondent’s attempt to pass itself off online as a UDRP complainant was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where a respondent used a disputed domain name to present users with a website that was nearly identical to that complainant’s website). See also Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum March 29, 2004) (finding that for a respondent to employ a domain name in a fraudulent scheme to deceive Internet users into providing their credit card information was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the challenged <towergateinsurance.properties> domain name, which we have found to be substantively identical, and, therefore, confusingly similar to Complainant’s TOWERGATE INSURANCE mark, is an effort by Respondent fraudulently to profit from the confusion thus caused among internet users as to the possibility of Complainant’s association with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017), finding bad faith registration and use under Policy ¶ 4(b)(iv) where “Respondent registered and uses the … domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”
See also Google Inc. v. Domain Admin, FA 1502001605239 (Forum March 22, 2015) (finding that the use of a domain name that was confusingly similar to the mark of a UDRP complainant in order to facilitate a respondent’s illegal activities demonstrated that respondent’s bad faith registration and use of the domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <towergateinsurance.properties> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 17, 2019
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