Direct Line Insurance plc v. Domain Drop S.A.
Claim Number: FA0702000921680
Complainant is Direct Line Insurance plc (“Complainant”), represented by James
A. Thomas, of Parker, Poe, Adams & Bernstein L.L.P.,
Post Office
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <lineadirecta.org>, registered with BelgiumDomains, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 21, 2007; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2007.
On February 22, 2007, BelgiumDomains, LLC confirmed by e-mail to the National Arbitration Forum that the <lineadirecta.org> domain name is registered with BelgiumDomains, LLC and that Respondent is the current registrant of the name. BelgiumDomains, LLC has verified that Respondent is bound by the BelgiumDomains, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 26, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 19, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@lineadirecta.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 23, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 makes the following assertions:
1. Respondent’s <lineadirecta.org> domain name is identical to Complainant’s LINEA DIRECTA mark.
2. Respondent does not have any rights or legitimate interests in the <lineadirecta.org> domain name.
3. Respondent registered and used the <lineadirecta.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Direct Line Insurance plc, was founded in 1985 as a provider of financial and insurance products and services, including car insurance, home insurance, loans, and mortgages. Complainant currently provides services to over five million customers worldwide. In particular, Complainant offers a general insurance product under the trademark LINEA DIRECTA, which has been registered with the Oficina Espanola de Patentes y Marcas (the Spanish Office of Patents and Marks) (Reg. No. 1,190,911 issued June, 16, 1989) as well as the European Union Office for Harmonization of the Internal Market (Reg. No. 2,293,553 issued October 30, 2006).
Respondent registered the <lineadirecta.org> domain name on June 5, 2006. Respondent’s disputed domain name resolves to a website containing “sponsored links” to various commercial websites, at least one of which offers services that compete with Complainant’s own financial services.
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."
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.”).
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.
Complainant asserts rights in the LINEA DIRECTA mark through its registration with the Oficina Espanola de Patentes y Marcas in 1989. The Panel finds that Complainant presented evidence sufficient to support of finding of rights in the mark under Policy ¶ 4(a)(i). See Davidoff & Cie SA v. Darnell, FA 97331 (Nat. Arb. Forum July 23, 2001) (finding rights in the DAVIDOFF mark through its registration with the Spanish Office of Patents and Marks); see also Choice Hotels Int’l, Inc. v. Domain Admin., FA 791619 (Nat. Arb. Forum Oct. 18, 2006) (finding that the complainant had established rights in the mark through registration with the Spanish Office of Patents and Marks).
Respondent’s <lineadirecta.org>
domain name is identical to Complainant’s LINEA DIRECTA mark. Respondent’s disputed domain name contains
Complainant’s mark in its entirety, omits the space separating the two terms,
and adds the generic top-level domain “.org.”
Numerous panels have held that neither omission of spaces nor the
addition of a gTLD is sufficient to distinguish a domain name from an
established mark under Policy ¶ 4(a)(i).
See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights or legitimate interests in the <lineadirecta.org> domain name. In instances where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant contends that Respondent is using the <lineadirecta.org> domain name to operate a website that contains various “sponsored links” to commercial websites. The Panel finds that Respondent’s operation of a website at the disputed domain name for the purpose of collecting click-through fees for each misdirected Internet user is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
Moreover, Respondent has submitted no evidence that it is either commonly known by the disputed domain name or authorized to register domain names featuring Complainant’s mark. In the absence of such evidence, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <lineadirecta.org>
domain name for the purpose of collecting click-through fees for each
misdirected Internet user connected to a competing commercial website. The Panel finds that such use constitutes a
disruption of Complainant’s business for purposes of Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered
the domain name in question to disrupt the business of the complainant, a
competitor of the respondent); see also Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly
similar to Complainant's mark to divert Internet users to a competitor's
website. It is a reasonable inference that Respondent's purpose of registration
and use was to either disrupt or create confusion for Complainant's business in
bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Furthermore, Internet users searching for Complainant’s legitimate website will likely be confused when stumbling upon Respondent’s domain name as to Complainant’s sponsorship of or affiliation with the resulting website. The Panel finds that Respondent is attempting to capitalize on such confusion by collecting referral fees for each Internet user. Such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where the respondent directed Internet users seeking the complainant’s site to its own website for commercial gain).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lineadirecta.org> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 30, 2007
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