Phoenix Life Insurance Company v. Corp New Ventures Services
Claim Number: FA1508001635395
Complainant is Phoenix Life Insurance Company (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is Corp New Ventures Services (“Respondent”), Pennsylvania, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <phoenix-lifeinsurancecompany.com>, registered with Domaincapitan.com LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 27, 2015; the Forum received payment on August 27, 2015.
On August 31, 2015, Domaincapitan.com LLC confirmed by e-mail to the Forum that the <phoenix-lifeinsurancecompany.com> domain name is registered with Domaincapitan.com LLC and that Respondent is the current registrant of the name. Domaincapitan.com LLC has verified that Respondent is bound by the Domaincapitan.com LLC 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 August 31, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 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@phoenix-lifeinsurancecompany.com. Also on August 31, 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 Forum transmitted to the parties a Notification of Respondent Default.
On September 25, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
a. The manner in which the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. (UDRP Rule 3(b)(ix)(1); ICANN Policy ¶4(a)(i)).
i. Complainant, Phoenix Life Insurance Company (including its affiliates and predecessors, collectively, “Phoenix” or “Complainant”), is a well-known provider of life insurance and annuity services in the United States. For over 150 years, Phoenix consistently and continuously has used trademarks containing or comprising PHOENIX in connection with its life insurance, annuity and related services (the “PHOENIX Marks”).
ii. As a result of long term and widespread use and promotion, Phoenix has developed substantial public recognition and incalculable goodwill in its PHOENIX Marks. See Phoenix Life Insurance Company v. Dart Container Corporation, FA 115080 (Forum Sept. 10, 2002) (“As a result of Complainant’s extensive advertising and sponsorships, the public has come to identify the PHOENIX mark as being associated with high quality insurance, annuity, investment, and trust services and products”).
iii. Phoenix currently owns numerous federal trademark registrations for its PHOENIX Marks, including U.S. Registration Nos. 3914372, 3221517, 3230899, 4039405, 4039404, 3910689, 4003984, 4397033, 4502477, 4713986, 3309770, 3571927, 3498472, 3323744, 3692530, 3698161, 3557459, 3938973, 3824995, 3757577, 2399281, 2462266, 1487793 and 1487792. These trademark registrations conclusively prove Complainant’s rights in the PHOENIX Marks for the purposes of Policy ¶4(a)(i). See Phoenix Life Insurance Company v. Belize Domain WHOIS Service Lt, FA 1088044 (Forum Nov. 13, 2007) (“Complainant has sufficiently established rights in the PHOENIX mark through registration of the mark with the USPTO”).
iv. Complainant provides information about and access to its various services on a website located at www.phoenixwm.phl.com. Additionally, Complainant’s history has been compiled in a book entitled A Wealth of History, 150 Years with Phoenix, published by Greenwich Publishing Group, Inc.
v. Respondent is the owner of the domain name PHOENIX- LIFEINSURANCECOMPANY.COM, which domain name was registered long after Complainant established rights in its PHOENIX marks.
vi. The disputed domain name, which incorporates Complainant’s PHOENIX Mark in whole, must be deemed virtually identical or confusingly similar to Complainant’s registered PHOENIX Marks. See Global Esprit Inc. v. Living 4, D2004-0318 (WIPO Aug. 24, 2004) (confusion found in domain name that incorporated complainant’s mark in full); Phoenix Life Insurance Company v. Dart Container Corporation, FA 115080 (Forum Sept. 10, 2002) (domain name PHOENIX.BIZ confusingly similar to Complainant’s PHOENIX Marks).
vii. Respondent’s domain name features Complainant’s PHOENIX Mark in its entirety and merely adds the descriptive terms “life insurance” and “company.” The addition of descriptive terms to Complainant’s mark in the disputed domain name does not obviate the confusing similarly between Complainant’s mark and the disputed domain name. On the contrary, the addition of the descriptive terms “life insurance” and “company” in the disputed domain name—which terms describe services offered by Complainant and make the domain name identical to Complainant’s corporate name—only serves to enhance the confusingly similarity between Complainant’s PHOENIX Marks and the disputed domain name. See Phoenix Life Insurance Company v. Gateway Wealth Advisors, FA 1621274 (Forum July 3, 2015) (PHOENIX-ANNUITY confusingly similar to Complainant’s PHOENIX Marks); Phoenix Life Insurance Company v. Belize Domain WHOIS Service Lt, FA 1088044 (Forum Nov. 13, 2007) (PHOENIXLIFEINSURANCECOMPANY.COM confusingly similar to Complainant’s PHOENIX Marks).
viii. The addition of the gTLD “.com” and addition of a hyphen do not distinguish the disputed domain name from Complainant’s mark. See Morgan Stanley v. Morgan Stanley, FA 1169733 (Forum May 3, 2008) (finding addition of gTLD “.com” irrelevant for purposes of distinguishing disputed domain name from established mark because every domain must contain top level domain name); Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity”).
b. Why Respondent should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the Complaint. (UDRP Rule 3(b)(ix)(2); ICANN Policy ¶4(a)(ii)).
i. Upon information and belief, neither PHOENIX nor PHOENIX- LIFEINSURANCECOMPANY.COM are part of Respondent’s name. Additionally, upon information and belief, prior to the time Complainant established rights in its PHOENIX Marks, Respondent did not actually engage in any legitimate business or commerce under the name PHOENIX or PHOENIX- LIFEINSURANCECOMPANY.COM, and Respondent was not commonly known by either of those names. See SPTC, Inc. v. Bonanzas.com, Inc., FA 409895 (Forum Mar. 14, 2005) (no rights or legitimate interest in domain name SOTHEBYSAUCTIONS.COM because respondent was not known by SOTHEBY’S name); Pfizer Inc., and Pfizer Enterprises SARL v. Domain Purchase, FA 328187 (Forum Nov. 3, 2004) (no rights or legitimate interest in domain name DETROL.ORG because respondent had not offered any evidence and there was no proof suggesting that it was commonly known by the DETROL.ORG domain name).
ii. Respondent is not a licensee of Complainant, nor has Respondent ever been authorized by Complainant to register or use the PHOENIX Marks or domain name PHOENIX-LIFEINSURANCECOMPANY.COM. Indeed, Respondent has no relationship whatsoever to Complainant. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where Respondent was not a licensee of complainant).
iii. Respondent is not using the disputed domain name in connection with any bona fide offering of goods and services or for any legitimate or fair use or purpose. The disputed domain name resolves to a “parking” website that contains advertisements for and hyperlinks to third-party businesses offering services that compete with Complainant’s services. The parking of a domain name that resolves to a site with advertisements for and hyperlinks to third parties, especially those that compete with Complainant, is not a legitimate or bona fide use of a domain name. See San Francisco Baseball Associates L.P. v. Chad Lincoln, FA 1220185 (Forum Sept. 29, 2008) (use of parked pages and displayed links not bona fide offering of goods and services); Reed Elsevier Inc. and Reed Elsevier Properties Inc. v. Lu Lan, FA 1297147 (Forum Jan. 15, 2010) (no legitimate interest where “Respondent’s <lexixnexus.com> and <nexisuk.com> domain names resolve to parked websites containing hyperlinks and advertisements resolving to third-parties unrelated to Complainant”).
iv. Moreover, Respondent most likely is receiving click-through fees by using the domain name in this manner, which also is not a bona fide offering of goods and services under Paragraph ¶4(c)(i) of the Policy. See Russell Frey, d/b/a edHelper v. Glenn Scott, FA 1291225 (Forum Dec. 17, 2009) (panel held that respondent was likely profiting through receipt of click-through fees by use of disputed domain name EHELPER.COM to resolve to website containing links to third-party sites in competition with complainant and respondent’s use was neither bona fide offering of goods and services under Policy ¶4(c)(i) or legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii)).
v. Respondent is offering the disputed domain name for sale, which also is not a bona fide offering of goods and services or legitimate use of the disputed domain name. Veolia Environnement v. Domains by Proxy, Inc. / Bethesda Properties LLC, D2008-0252 (WIPO Apr. 16, 2008) (“fact that the disputed domain name is parked with Sedo and is offered for sale [is] inconsistent with rights or legitimate interests in favour of the Respondent”); Microgaming Software Systems Limited v. Jumbo Domains, D2008-1918 (WIPO Feb. 10, 2009) (parking and offering domain name for sale was not bona fide offering of goods or services).
vi. Also, Respondent does not have any legitimate rights in the disputed domain name given Complainant’s prior use and registration of Complainant’s PHOENIX Marks. Complainant’s prior use and registration of such marks give Respondent actual, or at a minimum constructive, knowledge of such use and registration. See Morgan Stanley v. Chan, FA 244123 (Forum Apr. 23, 2004) (respondents likely had knowledge of complainant’s MORGAN STANLEY marks prior to registration of domain name due to complainant’s “long-standing use and fame” of marks, and fact that marks were registered with USPTO provided constructive notice to respondent of complainant’s rights in MORGAN STANLEY marks).
c. Why the domain name should be considered as having been registered and used in bad faith. (UDRP Rule 3(b)(ix)(3); ICANN Policy ¶4(a)(iii).
i. It is clearly more than a coincidence that Respondent chose and registered a domain name that is confusingly similar to Complainant’s PHOENIX Marks. Complainant has a long and well established reputation in the PHOENIX Marks through Complainant’s exclusive use of the marks in the insurance and annuity industry. There can be no doubt that Respondent was aware of Complainant’s PHOENIX Marks when Respondent chose and registered its domain name, and in fact chose the domain name because it was confusingly similar to Complainant’s well-known marks and intended to capitalize on that confusion to attract Internet users to its website. This alone constitutes evidence of bad faith of an registration of a domain. See Disney Enterprises, Inc. v. JalapenoWare LLC, FA 1302464 (Forum Feb. 22, 2010) (bad faith demonstrated by confusing use of famous DISNEY mark in domain names DISENY.COM and DSINEY.COM); Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith”); Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith”).
ii. The disputed domain name resolves to a website that contains advertisements for and hyperlinks to third parties that offer services that compete with Complainant’s services. This is strong evidence of bad faith use and registration of a domain name. See Morgan Stanley v. Ke Zhao, FA 1317816 (Forum May 17, 2010) (“The Panel finds that Respondent’s registration and use of the disputed domain name constitutes bad faith under Policy ¶4(b)(iii) because Respondent’s disputed domain name diverts Internet users seeking Complainant’s services to the services of Complainant’s competitors thereby creating a disruption to Complainant’s business”); Morgan Stanley v. Domain Park Ltd., FA 1045852 (Forum Sept. 10, 2007) (finding domains were registered and used in bad faith where they resolved to parked web pages that contain links to third-party sites, some of which offered services that competed with Complainant’s services).
iii. Presumably, Respondent receives a financial benefit in the form of click- through fees from these competitors of Complainant, a further indication of bad faith. See Enterprise Rent-A-Car Company v. Whois Service c/o Belize Domain WHOIS Service, FA 992206 (Forum June 29, 2007) (receipt of click-through fees is evidence of bad faith); Morgan Stanley v. Ke Zhao, FA 1317816 (Forum May 17, 2010) (“In this case the Panel presumes that Respondent is collecting click- through fees and is attempting to profit by creating a likelihood of confusion between the Complainant’s MORGAN STANLEY mark and the confusingly similar disputed domain name”); T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (registration and use of domain name confusingly similar to complainant’s mark to direct Internet traffic to commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith).
iv. Nonetheless, even if Respondent does not receive click-through fees and it was the Registrar, and not the Respondent, who, pursuant to the “parking” agreement between the Respondent and Registrar, generated the links to third party competitors of Complainant, Respondent still acted in bad faith because it allowed “the disputed domain name to be used to attract, for commercial gain, Internet users who may be confused as to Complainant[s’] affiliation with those sites.” Discovery Communications, LLC v. Tripp Wood, FA 1299987 (Forum Feb. 19, 2010) (“a respondent engages in bad faith registration and use when the respondent has authorized the use of the parking service and thus condoned its use of the disputed domain name”). See also St. Farm Mutual Auto. Insr. Co. v. Pompilio, FA 1092410 (Forum Nov. 20, 2007) (“As a rule, the owner of a parked domain name does not control the content appearing at the parking site. Nevertheless, it is ultimately [the] respondent who is responsible for how its domain name is used”); Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding bad faith registration and use even where the “respondent [was] adamant that he [was] not receiving click-through referral fees generated from the websites at which the Disputed Domains [were] ‘parked.’ …for a number of reasons, the panel [found] that it [was] irrelevant whether or not respondent [was] personally receiving any of those click-through referral fees… the key fact here is that respondent, in collaboration with the domain parking service is exploiting complainant’s good will”).
v. Respondent is offering the domain name for sale, which is strong evidence of bad faith. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”); Deutsche Telekom AG v. Domain Admin, D2008-0625 (WIPO June 19, 2008) (same).
vi. Finally, because Complainant’s marks are well known and registered in the United States, Respondent is presumed to have had constructive knowledge of Complainant’s marks at the time it registered the confusingly similar domain name. This knowledge indicates Respondent’s bad faith use and registration. See Carnival Plc v Belize Domain WHOIS Service Lt, FA 997973 (Forum July 17, 2007) (constructive knowledge of mark due to federal registration is evidence of bad faith).
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 owns the PHOENIX mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,399,281, registered Oct. 31, 2000). Complainant uses the PHOENIX mark in connection with its life insurance and annuity services in the United States. The registration of a mark with a governmental trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)). Complainant’s USPTO registration is sufficient to prove Complainant’s rights under Policy ¶4(a)(i).
Complainant claims the <phoenix-lifeinsurancecompany.com> domain name is confusingly similar to the PHOENIX mark. The domain name features Complainant’s PHOENIX mark in its entirety, adds the descriptive terms “life insurance” and “company,” inserts a hyphen, and attaches the gTLD “.com” to the domain name. A domain name is confusingly similar to a mark when a respondent adds descriptive terms to a registered mark…and incorporates Complainant’s mark in its entirety. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶4(a)(i)). The addition of a hyphen does not prevent a finding of confusing similarity under Policy ¶4(a)(i). The addition of “.com” gTLD is also not sufficient to prevent a finding of confusing similarly under a under Policy ¶4(a)(i) analysis because all domain names must contain a TLD (whether a gTLD or ccTLD). See InfoSpace.com, Inc. v. Ofer, D2000-0075 (WIPO Apr. 27, 2000) (finding that “[t]he domain name ‘info-space.com’ is identical to Complainant’s INFOSPACE trademark. The addition of a hyphen and .com are not distinguishing features”). The <phoenix-lifeinsurancecompany.com> domain name is confusingly similar to Complainant’s mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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.”).
Complainant claims Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant ever authorized Respondent to use the PHOENIX trademark. The WHOIS information for the disputed domain name lists “Corp New Ventures Services” as the registrant of record, which bears no obvious relationship to the domain name. Respondent not submitted any evidence to the contrary. Complainant’s contentions (with supporting documentation) are sufficient to establish Respondent’s lack of rights to the disputed domain name according to Policy ¶4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant claims Respondent’s lack of rights or legitimate interests in the <phoenix-lifeinsurancecompany.com> domain name is clear because Respondent’s fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The <phoenix-lifeinsurancecompany.com> domain name resolves to a dynamic parking page containing advertisements for third-party businesses which compete with Complainant. Some of the hyperlinks reached through Respondent’s resolving website include “Group Term Life Insurance,” “Globe Life: Official Site,” and “Term Life Insurance.” Using hyperlinks to redirect Internet users to a complainant’s competitors is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶4(c)(i) or Policy ¶4(c)(iii), respectively. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name 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)). Respondent is normally paid a “click through” fee whenever someone clicks on such links. Respondent is not making either a bona fide offering of goods or services under Policy ¶4(c)(i), nor a noncommercial or fair use pursuant to Policy ¶4(c)(iii).
Complainant claims Respondent is offering the disputed domain name for sale. Respondent indicated the domain name is for sale on AFTERNIC for $877. Generally offering a domain for sale is evidence a respondent lacks rights or legitimate interests in the domain name (especially if Respondent offers the domain for sale in excess of Respondents demonstrated out of pocket costs…which is the case in this Proceeding). See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights). Respondent lacks rights and legitimate interests in respect of the disputed domain name under Policy ¶4(a)(ii).
The Panel finds Policy ¶4(a)(ii) satisfied.
Respondent has listed the disputed domain name for sale for $877.00 (an amount which exceeds Respondent’s out of pocket costs). This is strong evidence of bad faith under Policy ¶4(b)(i). Generally offering a disputed domain for sale is evidence of bad faith registration and use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶4(b)(i).”). Respondent has registered and uses the disputed domain name in bad faith under Policy ¶4(b)(i).
Complainant claims Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website. The disputed domain name resolves to a website containing competing hyperlinks, such as <life.insure.com> and <globalifeinsurance.com>. These links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. Such actions constitute bad faith registration and use under Policy ¶4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶4(b)(iii)). Respondent’s disruptive and competitive behavior is adequate evidence of bad faith registration and use pursuant to Policy ¶4(b)(iii).
Complainant claims Respondent intentionally attracts, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Respondent’s website features pay-per-click hyperlinks. Respondent presumably gets paid click through fees. Respondent has registered and uses the disputed domain name in bad faith under Policy ¶4(b)(iv) by using the <phoenix-lifeinsurancecompany.com> domain name to mislead consumers for Respondent’s own financial benefit. Using a disputed domain name to feature competing hyperlinks on the resolving website demonstrates bad faith registration and use. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Respondent has registered and uses the disputed domain name in bad faith under Policy ¶4(b)(iv).
Complainant claims Respondent knew of Complainant’s rights in the PHOENIX mark when it registered the disputed domain name, which is evidence of bad faith registration pursuant to Policy ¶4(a)(iii). Complainant has exclusive use of the PHOENIX mark in the insurance and annuity industries. In light of the use of the domain name, this Panel is convinced Respondent was well aware of Complainant’s mark when it chose to register the disputed domain name. Respondent registered and uses the disputed 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 Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <phoenix-lifeinsurancecompany.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Wednesday, October 7, 2015
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