WIPO Domain Name Decision D2019-0810 for acccinsurancecompany.com
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION ACCC Insurance Company v. Humberto Chavez Case No. D2019-0810 1. The Parties
The Complainant is ACCC Insurance Company, United States of America (“United States”) represented by Madan Law, United States.
The Respondent is Humberto Chavez of Cuba. 2. The Domain Name and Registrar
The disputed domain name is registered with Realtime Register B.V. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2019. On April 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 11, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 12, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 15, 2019.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 13, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2019.
The Center appointed Antony Gold as the sole panelist in this matter on May 16, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is an insurance company, based in Houston, Texas, United States, which specializes in property and casualty insurance, in particular the provision of automobile polices for consumers. It is the owner of a United States service mark, registration no.3,693,694, for ACCC INSURANCE COMPANY in class 9, registered on October 6, 2009. It owns other United States service marks, including registration no.3948224, for DRIVE WITH THE EAGLE, registered on April 19, 2011 in classes 35 and 36.
The disputed domain name was registered on March 24, 2012. It resolves to a website which purports to be that of the Complainant in that it is headed “ACCC Insurance Company” (appearing alongside an eagle motif), there is an online tool which purports to provide “FREE ACCC Auto Insurance Quotes” and subsequent pages contain information which purport to relate to the Complainant’s business, in particular telephone numbers for policy/billing issues. 5. Parties’ Contentions A. Complainant
The Complainant says that the disputed domain name is identical or confusingly similar to a trade mark in which it has rights. It refers to its service mark for ACCC INSURANCE COMPANY, full details of which are given above, and says that it has been using and promoting this mark for over twenty years. The generic Top Level Domain (“gTLD”) “.com” is disregarded for the purpose of comparing the disputed domain name with its trade mark. Accordingly, the disputed domain name is identical to the Complainant’s trade mark.
The Complainant also asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not found any evidence to show that the Respondent has used, or has made any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods and services.
The Respondent has not provided his actual contact information on his website. Rather, he has provided lists of locations and telephone numbers that belong to the Complainant, some of which are old, whilst others are current. The Respondent is trying to confused consumers into believing that they are on the Complainant’s website. This is likely to be in order to enable the Respondent to gain pay-per-click income or so that it can gather the contact information of unwitting consumers and sell that information to third parties as part of a phishing scheme. In addition, the Respondent has not been known by the disputed domain name and owns no registered trade mark rights in any variation of the words “ACCC”, “insurance” and/or “company”. Moreover, the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name.
Decisions of panels under the Policy recognize that a complainant is required only to show prima facie evidence that a respondent lacks any rights or legitimate interests in a domain name, at which point the burden shifts to the respondent. The Complainant has established a prima facie case and the burden of showing a legitimate interest in the disputed domain name has therefore shifted to the Respondent.
Lastly, the Complainant says that the disputed domain name has been registered and is being used in bad faith. Whilst there is no evidence of the disputed domain name having been registered or acquired primarily for the purposes of selling it to the Complainant, nor that there has been a pattern of such behavior by the Respondent, the Respondent is still acting in bad faith.
As the Complainant holds exclusive trade mark rights to ACCC INSURANCE COMPANY in the United States, the Respondent has registered the disputed domain name for the purpose of disrupting the Complainant’s business by misleading consumers attempting to utilize its services into believing that they are on the Complainant’s website when really they are not. The Respondent is accordingly using the disputed domain name intentionally to attempt to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s registered trade mark. This is evidenced by the fact that the Respondent has not listed its own information on the website but rather contact information that belongs to the Complainant for use in its business dealings. Due to this purposeful disruption of the Complainant’s business as well as the Respondent’s use of its website for commercial gain and in an obvious attempt to confuse consumers, the Respondent has clearly exhibited bad faith.
The Complainant’s allegations are supported by the decisions of previous UDRP panels that have found that the use of phishing schemes to obtain personal information from Internet users constitutes bad faith under the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Dealing, first, with the Respondent’s failure to file a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission as it cons