The Travelers Indemnity Company v. Kate Jones
Claim Number: FA1902001829631
Complainant is The Travelers Indemnity Company (“Complainant”), represented by Caroline Ahn of The Travelers Indemnity Company, Connecticut, USA. Respondent is Kate Jones (“Respondent”), Ireland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelarsllc.com>, registered with Register.com, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 13, 2019; the Forum received payment on February 13, 2019.
On February 13, 2019, Register.com, Inc. confirmed by e-mail to the Forum that the <travelarsllc.com> domain name is registered with Register.com, Inc. and that Respondent is the current registrant of the name. Register.com, Inc. has verified that Respondent is bound by the Register.com, Inc. 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 February 14, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 6, 2019 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@travelarsllc.com. Also on February 14, 2019, 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 March 7, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant is a leading provider of property and casualty insurance, surety products, and risk-management services to a wide variety of businesses, government agencies/departments, associations, and individuals. Complainant has rights in the TRAVELERS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,611,053, registered Aug. 28, 1990). Respondent’s <travelarsllc.com>[i] domain name is identical or confusingly similar to Complainant’s mark as it merely replaces the letter “e” in the TRAVELERS mark with the letter “a” and adds the descriptive term “llc” and the “.com” generic top-level domain (“gTLD”).
2. Respondent has no rights or legitimate interests in the <travelarsllc.com> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the TRAVELERS mark.
3. Respondent also does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to impersonate an employee of Complainant to conduct fraudulent transactions.
4. Respondent registered and uses the <travelarsllc.com> domain name in bad faith. Respondent uses the domain name to intentionally attract, for commercial gain, Complainant’s customers and potential customers by creating a likelihood of confusion with Complainant’s TRAVELERS mark as to the source, sponsorship, affiliation, and/or endorsement of Respondent’s fraudulent activities.
5. Further, Respondent fails to make any use of the resolving webpage associated with the domain name.
6. Moreover, Respondent clearly knew of Complainant’s rights in the TRAVELERS mark because (a) Complainant’s TRAVELERS mark is internationally famous; (b) Complainant owns numerous trademark registrations for the TRAVELERS mark; (c) the domain name is nearly identical to Complainant’s <travelers.com> domain name; and (d) Respondent uses the domain name to pass itself off as an employee of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the TRAVELERS mark. Respondent’s domain name is confusingly similar to Complainant’s TRAVELERS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <travelarsllc.com> domain name and that Respondent registered and uses the 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(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 has rights in the TRAVELERS mark through its registration of the mark with the USPTO (e.g. Reg. No. 1,611,053, registered Aug. 28, 1990). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015). Accordingly, Complainant has established rights in the TRAVELERS mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <travelarsllc.com> domain name is identical or confusingly similar to Complainant’s mark as it merely replaces the letter “e” in the TRAVELERS mark with the letter “a” and adds the descriptive term “llc” and the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Chegg Inc. v. Company CEO / Qulity Programming, FA 1610061 (Forum Apr. 20, 2015) (finding confusing similarity under Policy ¶ 4(a)(i) whereas “Respondent’s <chwgg.com> domain name is a simple misspelling of Complainant’s CHEGG.COM mark.”); see also The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The Panel finds that the <travelarsllc.com> domain name is confusingly similar to the TRAVELERS mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <travelarsllc.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <travelarsllc.com> domain name. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Kate Jones” as the registrant, and Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain name prior to its registration, and does not have permission to use the TRAVELERS mark in any manner. Accordingly, the Panel holds that Respondent is not commonly known by the <travelarsllc.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant argues that Respondent uses the domain name to impersonate an employee of Complainant to conduct fraudulent transactions. This does not amount to a bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides a copy of an email sent using the <travelarsllc.com> domain name, which shows that Respondent uses the TRAVELERS mark to solicit wire transfers. Complainant also provides a copy of a receipt showing a successful wire transfer of 17,987.97 USD. Accordingly, the Panel holds that Respondent’s use of the <travelarsllc.com> domain name lacks rights and legitimate interests within the meaning of Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent uses the <travelarsllc.com> domain name to intentionally attract, for commercial gain, Complainant’s customers and potential customers by creating a likelihood of confusion with Complainant’s TRAVELERS mark as to the source, sponsorship, affiliation, and/or endorsement of Respondent’s fraudulent activities. Such use shows bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Complainant provides a copy of an email sent using the <travelarsllc.com> domain name, which shows that Respondent uses the TRAVELERS mark to solicit wire transfers. Complainant also provides a copy of a receipt showing a successful wire transfer of 17,987.97 USD. Accordingly, the Panel agrees that Respondent attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Next, Complainant argues that Respondent fails to make any use of the resolving webpage associated with the <travelarsllc.com> domain name. Inactively holding a domain name that incorporates the mark of another shows bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant provides a screenshot of the resolving webpage, which displays the error message “404 Error – Page Not Found.” Thus, Respondent’s failure to use the domain name provides additional evidence of Respondent’s bad faith under the Policy.
Further, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the TRAVELERS mark at the time of registering the <travelarsllc.com> domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name shows bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent’s knowledge can be inferred given: (a) Complainant’s TRAVELERS mark is internationally famous; (b) Complainant owns numerous trademark registrations for the TRAVELERS mark; (c) the domain name is nearly identical to Complainant’s <travelers.com> domain name; and (d) Respondent uses the domain name to pass itself off as an employee of Complainant. The Panel agrees Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith 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 <travelarsllc.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 15, 2019
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