Thrivent Financial for Lutherans v. Venkateshwara Distributor Private Limited.
Claim Number: FA1410001585248
Complainant is Thrivent Financial for Lutherans (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is Venkateshwara Distributor Private Limited. (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwthrivent.com>, registered with Tirupati Domains and Hosting Pvt 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 16, 2014; the National Arbitration Forum received payment on October 16, 2014.
On October 21, 2014, Tirupati Domains and Hosting Pvt Ltd. confirmed by email to the National Arbitration Forum that the <wwwthrivent.com> domain name is registered with Tirupati Domains and Hosting Pvt Ltd. and that Respondent is the current registrant of the name. Tirupati Domains and Hosting Pvt Ltd. has verified that Respondent is bound by the Tirupati Domains and Hosting Pvt 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 October 22, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 2014 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@wwwthrivent.com. Also on October 22, 2014, 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 18, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a provider of insurance products and financial services and is a Fortune 500 financial services organization with nearly 2.5 million members. Complainant uses the THRIVENT mark in connection with health and life insurance products and various financial products and services. Complainant registered the domain name <thrivent.com> in 2000 and has used the THRIVENT mark since at least as early as 2002. Complainant contends that the disputed domain name <wwwthrivent.com> was registered by Respondent well after Complainant’s mark became widely known and is confusingly similar to Complainant’s mark.
Complainant states that the disputed domain name is being used to divert traffic away from Complainant’s own websites to a site that prominently displays Complainant’s mark and contains commercial links to third-party sites, some of which compete directly against Complainant. Complainant also asserts that Respondent has advertised the disputed domain name for sale. Complainant states that it has not licensed its mark to Respondent, that Respondent is not commonly known by the mark or the disputed domain name, and that the mark is a coined term that has no meaning other than to designate Complainant’s own products and services. On these grounds Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name, and that the domain name was registered and has been used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 has been used 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:
(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.”).
The disputed domain name is identical to Complainant’s registered trademark, but for the addition of the generic prefix “www” and the “.com” top-level domain. These additions do not substantially diminish the similarity with Complainant’s mark. See, e.g., Aéropostale Procurement Co. v. Venkateshwara Distributor Private Ltd., FA 1476714 (Nat. Arb. Forum Feb. 15, 2013) (finding <wwwaeropostale.com> confusingly similar to AEROPOSTALE); Meadowbrook, L.L.C. d/b/a The Land of Nod v. Venkateshwara Distributor Private Ltd., FA 1419361 (Nat. Arb. Forum Jan. 24, 2012) (finding <wwwlandofnod.com> confusingly similar to THE LAND OF NOD); Comerica Inc. v. PrivacyProtect.org, Domain Admin / Venkateshwara Distributor Private Ltd., D2011-1697 (WIPO Nov. 29, 2011) (finding <wwwcomerica.com> confusingly similar to COMERICA); Allianz SE v. Venkateshwara Distributor Private Ltd./PrivacyProtect.org, D2010-0951 (WIPO Aug. 11, 2010) (finding <wwwallianz.com> confusingly similar to ALLIANZ). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
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 Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s coined mark without authorization, and it apparently has been used solely for a website containing advertising links, including links to competitors of Complainant. 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.
Respondent has been a party to numerous prior proceedings under the Policy, many of which involve analogous instances of typosquatting by prefixing a well-known trademark with “www”. See, e.g., Aéropostale Procurement Co. v. Venkateshwara Distributor Private Ltd., supra (<wwwaeropostale.com>); Meadowbrook, L.L.C. d/b/a The Land of Nod v. Venkateshwara Distributor Private Ltd., supra (<wwwlandofnod.com>); Comerica Inc. v. PrivacyProtect.org, Domain Admin / Venkateshwara Distributor Private Ltd., supra (<wwwcomerica.com>); Allianz SE v. Venkateshwara Distributor Private Ltd./PrivacyProtect.org, supra (<wwwallianz.com>); and others. For the same reasons as those expressed by the panels in those cases, the Panel finds that the disputed domain name <wwwthrivent.com> was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwthrivent.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 19, 2014
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