The Penn Mutual Life Insurance Company v. Greg Driscoll / Pennmutual
Claim Number: FA1703001724783
Complainant is The Penn Mutual Life Insurance Company ("Complainant"), represented by George Anthony Smith, Jr. of Howson & Howson LLP, Pennsylvania, USA. Respondent is Greg Driscoll / Pennmutual ("Respondent"), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pennmutual.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on March 31, 2017; the Forum received payment on March 31, 2017.
On April 3, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <pennmutual.net> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 April 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2017 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@pennmutual.net. Also on April 7, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a life insurance company. Complainant has used the service mark PENN MUTUAL in connection with its business continuously since 1847, and owns a U.S. registration for the mark that issued in 2011.
Respondent registered the disputed domain name <pennmutual.net> in June 2016. The name in which the domain name was registered, Greg Driscoll, is the name of Complainant's Chief Information Officer; Complainant states that neither Driscoll nor anyone else associated with Complainant registered the domain name. Complainant states further that the domain name has been used in connection with a fraudulent scheme to order mobile telephone equipment and services from various vendors in Complainant's name. On these grounds Complainant contends that the disputed domain name is confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical or 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 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 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.").
The disputed domain name <pennmutual.net> corresponds to Complainant's registered PENN MUTUAL mark, omitting the space and adding the ".net" top-level domain. These modifications do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Capital One Financial Corp. v. Ryan G Foo / PPA Media Services, FA 1544064 (Forum Mar. 25, 2014) (finding <capitalone.net> identical to CAPITAL ONE); American Express Co. v. Strategic Concepts, FA 96378 (Forum Feb. 15, 2001) (finding <americanexpress.net> identical to AMERICAN EXPRESS); General Electric Co. v. Charles Kasinga, D2000-0389 (WIPO July 14, 2000) (finding <generalelectric.net> confusingly similar to GENERAL ELECTRIC). The Panel finds that the disputed domain name is identical or confusingly similar to Complainant's mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's mark. It was registered without Complainant's authorization, and it is being used in an apparent attempt to impersonate Complainant in connection with a fraudulent scheme. See, e.g., Hill-Rom Inc. v. Jyoti Bansal, FA 1724573 (Forum May 3, 2017) (finding lack of rights or legitimate interests in similar circumstances). 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.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location." The instances of bad faith set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. Standard Bank of South Africa Ltd. v. Brian White, FA 1663527 (Forum Mar. 31, 2016). A registrant's failure to provide accurate domain name registration ("whois") data, though not dispositive, may also be indicative of bad faith. See id.
Respondent's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with a fraudulent scheme involving email messages attempting to defraud Complainant or third parties by exploiting that confusion, is indicative of bad faith under the Policy. See, e.g., Hill-Rom Inc. v. Jyoti Bansal, supra. The Panel finds that the disputed domain name was registered and is being 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 <pennmutual.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 4, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page