WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
M, Inc v. am, Guo Hui
Case No. D2007-0948
1. The Parties
The Complainant is M, Inc, Atlanta, Georgia, United States of America, represented by Isenberg & Hewitt, P.C., United States of America.
The Respondent is am, Guo Hui, North Carolina, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 28, 2007. On June 29, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 3, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 10, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 30, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 9, 2007.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on September 10, 2007. 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
Complainant uses the marks MOSTCHOICE and MOSTCHOICE.COM in connection with its primary business, which is an on-line service that provides information and price quotes in the fields of insurance, financial planning and investments; insurance, annuity and financial product brokerage services; consulting services in the fields of insurance, financial planning and investments.
Complainant is the owner of U.S. Trademark Registration No. 2638123 for the mark MOSTCHOICE, registered October 22, 2002, and Registration No. 2526944 for the mark MOSTCHOICE.COM, registered January 8, 2002.
Complainant has also registered and uses the domain name in connection with its business.
The Complainant’s business is generally lead generation. Consumers are directed to Complainant’s website when performing an Internet search for the purpose of locating on-line information or quotes for various financial and insurance services. Complainant has relationships with brokers or service providers and forwards inquiries from consumers to those brokers or providers for a fee. In addition, the brokers and providers are required to deposit money with Complainant and have “accounts” with Complainant to draw from when leads are generated and forwarded.
The disputed domain name is . The domain name was registered on March 13, 2006. The website content located at the disputed domain name appears to be identical to the website content of Complainant’s website, including identifying the controlling officers of MOSTCHOICE as those of “amostchoice.”
5. Parties’ Contentions
A. Complainant
Complainant contends that the domain name is confusingly similar to Complainant’s MOSTCHOICE trademark, that Respondent lacks any right or legitimate interest in the domain name, and that Respondent has registered and used the domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and 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.”
A. Identical or Confusingly Similar
The domain name incorporates Complainant’s MOSTCHOICE in its entirety. The only difference between the Complainant’s registered trademark and the domain name is the use of the letter “a” in front of the MOSTCHOICE mark. The most dominant feature of the domain name is Complainant’s registered MOSTCHOICE mark. The addition of a non-distinctive term, such as “a,” does not change the overall impression of the mark.
The Panel finds that the domain name is identical or confusingly similar to Complainant’s trademark.
B. Rights or Legitimate Interests
Respondent is not affiliated with or related to Complainant in any way, nor is Respondent licensed by Complainant or otherwise authorized to use the MOSTCHOICE mark.
Respondent is not generally known by the domain name and has not acquired any trademark or service mark rights in that name or mark. Respondent uses the domain name in connection with a website that duplicates the content of Complainant’s website, including the names of Complainant’s officers. Moreover, Respondent also lists Complainant’s address and telephone number as the registrant contact information for the domain name, as evidenced in the Whois report.
Respondent’s use of the domain name to divert visitors seeking Complainant’s products or services is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the domain names.
In light of the foregoing, the Panel finds that Respondent has no rights or legitimate interests with regard to the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website 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 website or location of a product or service on Respondent’s website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
Respondent’s domain name is deliberately being used for commercial gain to attract Internet users to Respondent’s website based on a likelihood of confusion with Complainant’s MOSTCHOICE mark.
In the event a broker or provider ends up at Respondent’s website by mistake, it is highly likely that the broker or provider’s personal financial information would be obtained by Respondent in a fraudulent manner. Indeed, this appears to be the intent of Respondent’s website, as the website copies the entire content of Complainant’s website, but has added the letter “A” in front of Complainant’s MOSTCHOICE mark wherever it appears on Respondent’s site.
Respondent’s blatant copying of the content of Complainant’s website, including the names of Complainant’s officers and Complainant’s contact information, is additional evidence of Respondent’s deliberate registration and use of the domain name in bad faith.
The Panel finds that the disputed domain name has been registered and used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: September 25, 2007
Full & Egal Universal Law Academy