The Travelers Indemnity Company v. valery budnik
Claim Number: FA1703001720156
Complainant is The Travelers Indemnity Company (“Complainant”), represented by Michael A. Bucci of The Travelers Indemnity Company, Connecticut, USA. Respondent is valery budnik (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travlers-insurance.com>, registered with GoDaddy.com, LLC.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 6, 2017; the Forum received payment on March 6, 2017.
On March 7, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <travlers-insurance.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 March 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2017 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@travlers-insurance.com. Also on March 8, 2017, 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 April 7, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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
Complainant, The Travelers Indemnity Company, is an international property and liability insurance organization based in Hartford, Connecticut. In connection with this business, Complainant uses the TRAVELERS mark to promote its goods and services. Complainant has rights in the TRAVELERS mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,611,053, registered Aug. 28, 1990). Respondent’s domain name, <travlers-insurance.com>, is confusingly similar to Complainant’s mark as it incorporates “travlers,” which is virtually identical to Complainant’s registered TRAVELERS mark, as it eliminates the first “e”; a hyphen; the descriptive term “insurance” and the generic top level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by <travlers-insurance.com> and has failed to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name diverts Internet customers looking for Complainant or Complainant’s services and products to a website that offers directly competing services or advertises such services via pay-per-click advertisements.
Respondent should be considered to have registered and used the domain name in bad faith. Respondent registered the disputed domain name without Complainant’s authority or permission. Respondent utilizes the domain name to intentionally attract Internet users by creating a likelihood of confusion for commercial gain of Respondent. Respondent’s bad faith is additionally evidenced through its registration of Complainant’s mark misspelled, which is both evidence of typosquatting and actual knowledge—nonexclusive circumstances for bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set for the below, the Panel finds Complainant is entitled to the requested relief of transfer of the <travlers-insurance.com domain name.
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(f), 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 (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 claims rights in the TRAVELERS mark based upon registration with the USPTO (e.g., Reg. No. 1,611,053, registered Aug. 28, 1990). Registration with the USPTO is sufficient to establish rights in a mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). The Panel may therefore find that Complainant has rights in the TRAVELERS mark based upon its registration with the USPTO pursuant to Policy ¶ 4(a)(i).
Complainant argues that <travlers-insurance.com> is identical and confusingly similar to Complainant’s mark as it contains “travlers,” a term very similar to the TRAVELERS mark as it merely eliminates the first “e”; adds a hyphen; and adds the descriptive word “insurance” and the gTLD “.com.” The misspelling of a complainant’s mark does not differentiate between a domain name and a mark per Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). Likewise, additional punctuation and descriptive words do not adequately differentiate marks from domains per Policy ¶ 4(a)(i). See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Novell, Inc. v. Taeho Kim, FA 167964 (Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”). Addition of gTLDs to marks does not serve to differentiate marks from a domain name. See SCOLA v. Wick, FA 1115109 (Forum Feb. 1, 2008) (concluding that “the domain name at issue is identical to [the] complainant’s SCOLA mark, as the only alteration to the mark is the addition of the generic top-level domain “.com.”). The Panel finds that <travlers-insurance.com> is identical and confusingly similar to Complainant’s mark pursuant Policy ¶ 4(a)(i).
Complainant has proved this element.
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 (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 (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 argues that Respondent has no rights or legitimate interests in <travlers-insurance.com> as Respondent is not commonly known by the disputed domain name, and Respondent has not been authorized to register an identical or confusingly similar domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum Jul. 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “valery budnik.” The Panel finds pursuant to Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Complainant argues that Respondent’s failure to use <travlers-insurance.com> in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use further evidences their lack of rights or legitimate interests in the disputed domain name. The domain name resolves to a website that allegedly offers services that directly compete with Complainant’s business, or otherwise offers pay-per-click links that lead to competing services. Use of a domain name to divert Internet users to a respondent’s website that compete with a complainant’s business is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (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).”). The Panel finds under Policy ¶¶ 4(c)(i) or (iii) that Respondent has not used the disputed domain name for a bona fide offering of goods or services or for any legitimate noncommercial or fair use, and thus lacks rights and legitimate interests in <travlers-insurance.com>.
Complainant has proved this element.
Complainant argues that Respondent utilizes the disputed domain name in bad faith by diverting Internet users looking for Complainant or Complainant’s goods and services. Use of a resolving website to divert Internet users and compete with complainant’s business can be evidence of bad faith pursuant to Policy ¶ 4(b) (iv). See Clark Equipment Company v. Namase Patel / Mumbai Domains, FA1406001566288 (Forum Jul. 30, 2014) (“The Panel observes that the Respondent’s disputed domain name leads to a website that features links to products that directly compete with Complainant’s products. The Panel determines that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and Respondent likely profits from the resulting confusion. Therefore, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). The disputed domain name resolves to a webpage which offers links to goods and services that compete with Complainant’s insurance business. Therefore, the Panel finds that Respondent registered and used <travlers-insurance.com> in bad faith pursuant to Policy ¶ 4(b)(iv).
Next, Complainant argues that Respondent benefits from the typographical error used in creating the disputed domain name. Deliberate misspelling of the mark of another in a domain name to take advantage of common typing errors made by Internet users supports a finding that Respondent registered and utilizes the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum Jul. 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Complainant’s asserted mark is TRAVELERS. The Panel agrees with Complainant that Respondent’s registration constitutes typosquatting, and finds further evidence that Respondent registered and utilized the domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Lastly, Complainant contends that Respondent had actual knowledge of Complainant and Complainant’s TRAVELERS mark. Informed use of a complainant’s mark to register a domain name that resolves to a page offering competing hyperlinks supports a finding that Respondent registered and utilized the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (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 disputed domain name contains Complainant’s TRAVELERS mark misspelled. Further, <travlers-insurance.com> resolves to a webpage offering goods and services via competing hyperlinks. The Panel agrees with Complainant that Respondent had actual knowledge of Complainant’s TRAVELERS mark, and find further evidence that Respondent registered and utilized <travlers-insurance.com> in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <travlers-insurance.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: April 15, 2017
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