WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Continental Casualty Company v. Andrew Krause / Domains by Proxy, Inc.
Case No. D2008-0672
1. The Parties
Complainant is Continental Casualty Company, Chicago, Illinois, United States of America,, represented by Brinks Hofer Gilson & Lione, United States of America.
Respondent is Andrew Krause / Domains by Proxy, Inc., Oxford, Michigan, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 29, 2008. On April 30, 2008, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the domain name at issue. On May 1, 2008, GoD, Inc. transmitted by email to the Center its verification response disclosing underlying 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 Complainant on May 7, 2008, providing the underlying registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. An Amended Complaint was filed on May 12, 2008. 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 Respondent of the Complaint, and the proceedings commenced on May 21, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was June 10, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 12, 2008.
The Center appointed Nicolas Ulmer and Angela Fox as panelists in this matter on July 14, 2008, and appointed Lynda J. Zadra Symes as presiding panelist on August 8, 2008. The Panel finds that it was properly constituted. Each member of 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 states that it has used the marks CONTINENTAL and CONTINENTAL CASUALTY for over 40 years, but did not submit any evidence of use of the mark with its Complaint.
Complainant owns U.S. Trademark Application Serial No. 77/313,006 for the mark CONTINENTAL CASUALTY COMPANY for insurance services. This application was filed as an intent-to-use application on October 25, 2007, and is currently pending before the United States Patent & Trademark Office (USPTO). The Panel reviewed this application, which is publicly available on the Internet in the USPTO TARR reports. In that application, Complainant has made the following disclaimer: “No claim is made to the exclusive right to use CONTINENTAL CASUALTY apart from the mark as shown.” Moreover, in a response to an Office Action from the USPTO during the application, Complainant's counsel stated that “the term CONTINENTAL is widely used in the marketplace” in connection with insurance services.
The disputed domain name was registered on December 7, 2003, almost four years prior to Complainant's trademark application. No content appears at the disputed domain name. Visitors who navigate to the disputed domain name are automatically transferred to the web site located at . Complainant submitted a page from that website showing only the text “Hell-o” on the site.
5. Parties' Contentions
A. Complainant
Complainant alleges that Respondent's domain name is confusingly similar with the Complainant's claimed trademarks “Continental Casualty” and “Continental,” that Respondent lacks any rights or legitimate interests 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
Paragraph 4(a) of the Policy provides that in order to divest Respondent of a disputed domain name, Complainant must demonstrate that each of the following three elements are present:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “a Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these rules and any rules and principles of law that it deems applicable.”
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires Complainant to demonstrate first that Complainant possesses a valid right in the mark, and second that the disputed domain name is identical or confusingly similar to that mark.
Complainant owns U.S. Trademark Application Serial No. 77/313,006 for the mark CONTINENTAL CASUALTY COMPANY for insurance underwriting services for all types of insurance. This application was filed as an intent-to-use application on October 25, 2007, and is currently pending before the USPTO. The panel's review of this application on the USPTO website indicates that no evidence of use has been submitted in the application. Moreover, Complainant has expressly disclaimed exclusive rights in the term CONTINENTAL CASUALTY. This disclaimer contradicts Complainant's claim to have established trademark rights in that term (an important detail unaddressed in the Complaint).
While common law trademark rights suffice to invoke the Policy, Complainant did not submit any evidence of use of its alleged trademark with its Complaint. Unlike a civil action in the United States of America, in a Policy proceeding a failure to deny an allegation does not of itself constitute an admission of the pleaded matter. A Complainant must prove each Policy element. Counsel's averments of factual matters in a pleading are not evidence per se. Without supporting evidence, the Panel cannot accept the Complainant's factual contentions as sufficient to establish common law rights in the mark at issue here.
There is no evidence in the record to support Complainant's claim that it has developed trademark rights in the mark CONTINENTAL CASUALTY.
Accordingly, the Panel finds that Complainant has not satisfied this element of the Policy.
B. Rights or Legitimate Interests
Complainant has made out a prima facie case that Respondent lacks rights or a legitimate interest in the domain name.
The record indicates that Respondent is not affiliated or related to Complainant or its subsidiaries in any way. There is there no evidence in the record indicating that Respondent is generally known by the domain name. The disputed domain name reverts to a blank page located at a different domain name .
Respondent's use of the domain name for such purposes is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name. Respondent has not put forward any evidence that would support a finding that it has rights or legitimate interests in the domain name.
In light of the foregoing, the Panel finds that Respondent has no rights or legitimate interests with respect to the domain name at issue.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states a number of 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 Complainant who is the owner of the trademark or service mark or to a competitor of 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 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.
In this case, Respondent registered the disputed domain name almost four years prior to Complainant's trademark application. There is no evidence in the record from which the Panel could necessarily infer that Complainant's trademark was known to Respondent at the time of registering the domain name. In the absence of evidence showing use of Complainant's alleged mark prior to the date of registration of the domain name, there is no evidence upon which the Panel can base a finding of bad faith.
7. Decision
For the foregoing reasons, the Complaint is denied.
Lynda J. Zadra-Symes
Presiding Panelist
Nicolas Ulmer
Panelist
Angela Fox
Panelist
Dated: August 20, 2008
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