Phoenix Life Insurance Company v.
Claim Number: FA0710001088044
Complainant is Phoenix Life Insurance Company (“Complainant”), represented by Eric
J. Shimanoff, of Cowan, Liebowitz & Latman, P.C., 1133
Avenue of the
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <phoenixlifeinsurancecompany.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 3, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 4, 2007.
On October 3, 2007, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <phoenixlifeinsurancecompany.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 October 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 25, 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@phoenixlifeinsurancecompany.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 30, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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
<phoenixlifeinsurancecompany.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <phoenixlifeinsurancecompany.com> domain name.
3. Respondent registered and used the <phoenixlifeinsurancecompany.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Phoenix Life Insurance Company, has been
operating under the
Respondent’s <phoenixlifeinsurancecompany.com>
domain name was registered on November 8, 2005 and currently resolves to a
website that contains links to third-parties that provide services which
compete with those services offered under Complainant’s mark. Respondent has also had numerous other domain
names transferred from it by similarly situated panels. See
C.R. Bard, Inc. & BCR Inc. v.
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 has sufficiently established rights in the
Respondent’s <phoenixlifeinsurancecompany.com>
domain name contains Complainant’s
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no
rights or legitimate interests in the <phoenixlifeinsurancecompany.com>
domain name. See VeriSign Inc. v.
VeneSign
Respondent has failed to submit a response to the
Complaint. As a result, the Panel
presumes that Respondent has no rights or legitimate interests in the <phoenixlifeinsurancecompany.com>
domain name but will still consider under Policy ¶ 4(c) all of the available
evidence. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum
Dec. 1, 2004) (finding that because Respondent failed to submit a Response,
“Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel
accepts as true all reasonable allegations . . . unless clearly contradicted by
the evidence.”).
Nowhere in Respondent’s WHOIS information or elsewhere in
the record does it indicate that Respondent is or ever was commonly known by
the <phoenixlifeinsurancecompany.com> domain name. Moreover, Complainant contends that it has
not granted Respondent permission to use its
Respondent’s <phoenixlifeinsurancecompany.com>
domain name contains Complainant’s mark in its entirety and resolves to a
website featuring various links to third-parties, many of which offer services
in competition with those offered under Complainant’s PHOENIX mark. The Panel finds this to be neither a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See eBay
Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the
respondent’s use of the complainant’s entire mark in domain names makes it
difficult to infer a legitimate use); see
also Golden Bear Int’l,
Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb.
Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to
Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent 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).”); see also Glaxo Group Ltd. v.
WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the
respondent was not using the domain name within the parameters of Policy ¶
4(c)(i) or (iii) because the respondent used the domain name to take advantage
of the complainant's mark by diverting Internet users to a competing commercial
site).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <phoenixlifeinsurancecompany.com>
domain name resolves to a website that provides links to various commercial third-parties,
many of which offer services in competition to those offered under
Complainant’s mark. The Panel finds this
to establish that Respondent registered and is using the disputed domain name
in bad faith pursuant to Policy ¶ 4(b)(iii).
See S. Exposure
v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the
respondent acted in bad faith by attracting Internet users to a website that
competes with the complainant’s business); 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).”).
Moreover, Respondent is presumed to be benefiting through
the use of click-through fees from these hyperlinks to third-party competitors
of Complainant. The Panel finds that the
disputed domain name is capable of creating a likelihood of confusion with
Complainant’s mark and this is thus further evidence of Respondent’s bad faith
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 Kmart v. Khan, FA
127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits
from its diversionary use of the complainant's mark when the domain name
resolves to commercial websites and the respondent fails to contest the
complaint, it may be concluded that the respondent is using the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv)).
Lastly, Respondent has been the subject of numerous previous
domain name disputes before similarly situated panels that have transferred
Respondent’s domain names. See C.R. Bard, Inc. & BCR Inc. v.
The Panel concludes that Complainant has satisfied 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 <phoenixlifeinsurancecompany.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 13, 2007
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