Independent Insurance Agents & Brokers of America, Inc., a New York corporation v. liqian
Claim Number: FA1405001562075
Complainant is Independent Insurance Agents & Brokers of America, Inc., a New York corporation (“Complainant”), represented by Joseph L. Doherty, Virginia, USA. Respondent is liqian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trustdchoice.com>, registered with Hangzhou AiMing Network Co., LTD.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 30, 2014; the National Arbitration Forum received payment on June 5, 2014. The Complaint was submitted in both Chinese and English.
On June 2, 2014, Hangzhou AiMing Network Co., LTD confirmed by e-mail to the National Arbitration Forum that the <trustdchoice.com> domain name is registered with Hangzhou AiMing Network Co., LTD and that Respondent is the current registrant of the name. Hangzhou AiMing Network Co., LTD has verified that Respondent is bound by the Hangzhou AiMing Network Co., LTD 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 11, 2014, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 1, 2014 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@trustdchoice.com. Also on June 11, 2014, the Chinese language 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 3, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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" 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 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <trustdchoice.com> domain name, the domain name at issue, is confusingly similar to Complainant’s TRUSTED CHOICE mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Independent Insurance Agents & Brokers of America, Inc., a New York corporation, uses the TRUSTED CHOICE mark in connection with insurance services and owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the TRUSTED CHOICE mark (Reg. No. 2,863,176, registered July 13, 2004). The disputed domain name is confusingly similar to Complainant’s TRUSTED CHOICE mark.
Respondent has no rights or legitimate interests in the disputed domain name and is not commonly known by the disputed domain name. The disputed domain name resolves to a website where Respondent places advertisement links to Complainant’s competitors. Each of the links on Respondent’s website requests consumers’ personal information.
Respondent is using the disputed domain name to disrupt the business of Complainant, because the associated website contains advertisement links for Complainant’s competitors. Each of the links on Respondent’s website requests consumers’ personal information. Respondent has engaged in typosquatting and had knowledge of Complainant’s rights in the TRUSTED CHOICE mark at the time it registered the disputed domain name on March 24, 2014.
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(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. See 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.”).
Complainant uses the TRUSTED CHOICE mark in connection with insurance services and owns a trademark registration with the USPTO for the TRUSTED CHOICE mark (Reg. No. 2,863,176, registered July 13, 2004). While Respondent resides in China, it is irrelevant under Policy ¶ 4(a)(i) whether Complainant registers its mark in the country of Respondent’s residence. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Consequently, Complainant’s USPTO registration of the TRUSTED CHOICE mark sufficiently proves that it has rights in the mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <trustdchoice.com> domain name is confusingly similar to Complainant’s TRUSTED CHOICE mark, because Respondent simply removes the letter “e” in Complainant’s TRUSTED CHOICE mark. The removal of a letter from a mark does nothing to distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). Lastly, the Panel observes that Respondent omits the space in Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.” Respondent’s elimination of spaces and addition of a gTLD is irrelevant to a confusingly similar analysis under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel finds that Respondent’s <trustdchoice.com> domain name is confusingly similar to Complainant’s TRUSTED CHOICE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent is not commonly known by the <trustdchoice.com> domain name. Respondent has not acquired any trade or service mark rights in the domain name and does not use the domain name as a legal name or business name. Complainant has never given Respondent permission to use the TRUSTED CHOICE mark. Respondent is listed as “liqian” in the WHOIS information. In Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), the panel concluded that 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 respondent was commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <trustdchoice.com> domain name under Policy ¶ 4(c)(ii).
Respondent’s <trustdchoice.com> domain name resolves to a website where Respondent places advertisement links to Complainant’s competitors. Respondent is using the disputed domain name to provide competing links such as “Progressive Car Insurance,” “$19 for Car Insurance?,” “Allstate Car Insurance,” and more. Past UDRP panels held that a respondent’s use of a domain name to provide competing links is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Each of the links featured on Respondent’s website resolving from the <trustdchoice.com> domain name requests consumers’ personal information. For example, consumers are asked to provide their vehicle information, name, address, birthdate, marital status, education level, occupation, credit evaluation, and driving history. The Panel holds that Respondent is using the disputed domain name in order to phish for consumers’ personal information and finds that Respondent is not using the <trustdchoice.com> domain name for a bona fide offering of goods pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent is using the <trustdchoice.com> domain name to disrupt the business of Complainant by using the disputed domain name to redirect Internet users to a hyperlink directory containing links that directly compete with Complainant’s business. Past UDRP panels have held that a respondent’s use of a domain name to provide competing links disrupts a complainant’s business under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). Therefore, Respondent’s use of the <trustdchoice.com> domain name disrupts Complainant’s business, demonstrating bad faith under Policy ¶ 4(b)(iii).
Respondent’s <trustdchoice.com> domain name contains advertisement links for Complainant’s competitors. For example, Respondent’s disputed domain name resolves to a webpage hosting competing advertisements titled “USAA Car Insurance,” “Fast & Free Car Insurance,” “Allstate Auto Insurance,” and more. Respondent likely receives revenue from its use of the disputed domain name. In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel found that “Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).” Thus, the Panel finds that Respondent has registered and is using the <trustdchoice.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Each of the links on Respondent’s website requests consumers’ personal information. Upon arriving at the website resolving from Respondent’s <trustdchoice.com> domain name, consumers are asked to provide their vehicle information, name, address, birthdate, marital status, education level, occupation, credit evaluation, and driving history. The Panel finds that Respondent is using the disputed domain name in an attempt to phish personal information from Internet users and determines that Respondent has registered and is using the <trustdchoice.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
Respondent has engaged in typosquatting. Respondent simply deletes the letter “e” in Complainant’s TRUSTED CHOICE mark in creating the <trustdchoice.com> domain name. In Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003), the panel found that respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Consequently, the Panel concludes that Respondent has engaged in typosquatting, showing bad faith use and registration under Policy ¶ 4(a)(iii).
Respondent had knowledge of Complainant’s rights in the TRUSTED CHOICE mark at the time it registered the <trustdchoice.com> domain name because Respondent registered the disputed domain name approximately 14 years after Complainant received a trademark registration for the TRUSTED CHOICE mark. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's mark and the nature of Respondent’s use of the resolving website, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds that Respondent registered the <trustdchoice.com> domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration.”)
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trustdchoice.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: July 5, 2014
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