Allstate Insurance Company v Peter Irabor
Claim Number: FA1501001601252
Complainant is Allstate Insurance Company (“Complainant”), represented by Richard S. Stockton of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Peter Irabor (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allstatesinsuranceco.com>, registered with Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA.
The undersigned certifies that he or she 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 22, 2015; the National Arbitration Forum received payment on January 22, 2015.
On January 22, 2015, Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA confirmed by e-mail to the National Arbitration Forum that the <allstatesinsuranceco.com> domain name is registered with Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA and that Respondent is the current registrant of the name. Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA has verified that Respondent is bound by the Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA 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 January 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 11, 2015 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@allstatesinsuranceco.com. Also on January 22, 2015, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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’s Contentions
1. Complainant utilizes the ALLSTATE trademark in its engagements in business and commerce in the equitable transfer of the risk of loss through insuring individuals and entities. The ALLSTATE mark is registered with the United States Patent and Trademark Office (e.g., Reg. No. 717,683, registered June 27, 1961). The <allstatesinsuranceco.com> domain name takes the entire mark and merely adds on a phrase, “insuranceco,” which implies the ALLSTATE insurance company business. The affixation of a gTLD such as “.com” is of little merit.
2. Respondent has no rights or legitimate interests in this domain name. First, Respondent is not commonly known by this <allstatesinsuranceco.com> domain name and has never been licensed by Complainant to utilize the ALLSTATE mark in any manner. Further, the domain name appears to contain the ALLSTATE mark, other marks held by Complainant, and then several paragraphs of content that appear to be in Latin.
3. Respondent has registered and is using the <allstatesinsuranceco.com> domain name in bad faith. Respondent is profiting from a likelihood that Internet users will confuse Complainant as the source or origin of this domain name and its underlying content. Further, Respondent registered the domain name with actual knowledge of Complainant’s interest in the ALLSTATE trademark.
B. Respondent’s Contentions
1. Respondent did not submit a response.
1. Respondent’s <allstateinsuranceco.com> domain name is confusingly similar to Complainant’s ALLSTATE mark.
2. Respondent does not have any rights or legitimate interests in the <allstateinsuranceco.com> domain name.
3. Respondent registered or used the <allstateinsuranceco.com> domain name 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.”).
Complainant utilizes the ALLSTATE trademark in its engagements in business and commerce in the equitable transfer of the risk of loss through insuring individuals and entities. The ALLSTATE mark is registered with the United States Patent and Trademark Office (e.g., Reg. No. 717,683, registered June 27, 1961). The Panel agrees that this USPTO registration does show satisfactorily that Complainant has rights in the mark under Policy ¶ 4(a)(i). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant claims that the <allstatesinsuranceco.com> domain name takes the entire mark and merely adds on a phrase, “insuranceco,” which implies the ALLSTATE insurance company business. Complainant also believes that the affixation of a gTLD such as “.com” is of little merit. This Panel agrees that merely adding a gTLD to a mark does nothing to enhance distinction. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Further, the Panel agrees that adding the descriptive wording “insuranceco” to the domain name enhances the confusing similarity of the domain name under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business).
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.”).
First, Complainant argues that Respondent is not commonly known by this <allstatesinsuranceco.com> domain name and has never been licensed by Complainant to utilize the ALLSTATE mark in any manner. The Panel agrees that Respondent provides nothing to base a finding for it upon, and the WHOIS information states that “Peter Irabor” is the registrant of record for the disputed domain name. The Panel agrees the available evidence provides no basis for a finding for Respondent under Policy ¶ 4(c)(ii). See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
Complainant points out that the domain name appears to contain the ALLSTATE mark, other marks held by Complainant, and then several paragraphs of content that appear to be in Latin. See Compl., at Attached Exs. 8, 9. This Panel agrees that as the domain name’s use appears to be for some end involving a Latin-language website that includes Complainant’s trademarks, it is unclear that the use can be considered bona fide offerings under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See 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).”).
Complainant argues that Respondent is profiting from a likelihood that Internet users will confuse Complainant as the source or origin of this domain name and its underlying content. The Panel agrees that as Respondent only uses the domain name to host a Latin-language website that references the ALLSTATE mark, there is a likelihood for consumers to be confused as to Complainant’s association with this website. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Complainant goes on to argue that Respondent registered the domain name with actual knowledge of Complainant’s interest in the ALLSTATE trademark. The Panel agrees that the presence of the ALLSTATE mark on the website associated with the domain name furnishes tangible evidence of Respondent’s Policy ¶ 4(a)(iii) bad faith through registration with actual knowledge of the ALLSTATE mark. See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (“The Panel also finds that there are reasonable grounds to infer that Respondent had actual notice of Complainant’s rights in the mark as well. . . Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allstatesinsuranceco.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 2, 2015
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