WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Nationwide Mutual Insurance Company v. Daryl Martens Case No. D2009-1154 1. The Parties
The Complainant is Nationwide Mutual Insurance Company, of Columbus, Ohio, United States of America, represented by Bricker & Eckler LLP, United States of America.
The Respondent is Daryl Martens, of Abbotsford, British Columbia, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with Dynadot, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2009. On August 31, 2009, the Center transmitted by email to Dynadot, LLC a request for registrar verification in connection with the disputed domain name. On September 2, 2009, Dynadot, LLC 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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 4, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 25, 2009.
The Center appointed Moonchul Chang as the sole panelist in this matter on October 1, 2009. 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 was founded in Ohio, United States in 1926 under the name Farm Bureau Mutual Automobile Insurance Company, which name was changed to National Mutual Insurance Company in 1955. Since then the Complainant began offering its casualty, automobile, life and health insurance under the NATIONWIDE service mark and currently offers various insurance and financial services under the NATIONWIDE mark throughout the United States.
The Complainant owns registered trademarks in United States such as NATIONWIDE (Reg. No. 854,888, August 13, 1968), NATIONWIDE with design (Reg. No. 2,371,088, July 25, 2000), NATIONWIDE (Reg. No. 2,017,147, Nov. 19, 1996), NATIONWIDE ADVANTAGE MORTGAGE with design (Reg. No. 2,811,277, February 3, 2004), NATIONWIDE FINANCIAL SERVICES (Reg. No. 1,955,871, February 13, 1996), NATIONWIDE BANK (Reg. No. 3,308,449, Oct. 9, 2007), and etc. (Annex C) Since 1994, the Complainant has also owned and used the domain name and then registered other domain names such as , which redirects to .
The Respondent registered the domain name which was created on September 18, 2008 on the WhoIs Search Results. The Respondent is currently managing the “www.” website. 5. Parties' Contentions A. Complainant
The Complainant contends that
(1) The disputed domain name incorporates the NATIONWIDE mark in its entirety, adding only the letter “i” between the words “nation” and “wide”. The disputed domain name is confusingly similar to the Complainant's trademarks.
(2) The Respondent has no legitimate rights in the domain name . The Respondent is neither a licensee of, nor affiliated with the Complainant. The Respondent's name does not include the word NATIONWIDE and the Respondent's business has nothing to do with the links to insurance products and services.
(3) The Respondent registered and is using the domain name in bad faith to benefit from misdirected traffic resulting from the typographical errors of those seeking to go to WWW.NATIONWIDE.COM. The Respondent registered the disputed domain name to typosquat upon the NATIONWIDE trademark and , one of the Complainant's websites through which it conducts a significant amount of business. The Respondent has tailored the entire site to contain links to products and services in competition with the Complainant. Using a domain name to intentionally attract, for commercial gain, internet users to a website by creating confusion with a complainant's mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv). B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to decide the Complaint on the grounds of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, under paragraph 14(b) of the Rules, it is established that: “If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.” In light of the above, the Panel may draw such inferences from the Respondent's failure to comply with the Rules, as it considers appropriate.
Under paragraph 4(a) of the Policy, the complainant must prove each of the following:
(i) The domain name is identical or confusingly similar to the complainant's trademark or service mark; and
(ii) The 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. A. Similarity between the Service Mark and the Domain Name disputed
The disputed domain name includes the word NATIONWIDE which is identical to the trademark of the Complainant. The only difference is that the letter “i” is added between the words “nation” and “wide”. Thus, the Respondent's domain name is so similar to Complainant's trademark that it may create confusion and constitutes typosquatting. (See The Nasdaq Stock Market, Inc. v. Act One Internet Solutions,WIPO Case No. D2003-0103)
Therefore, the panel concludes, under paragraph 4(a)(i) of the Policy, the disputed domain name is identical or confusingly similar to the trademark of the Complainant. B. Rights or Legitimate Interests of the Respondent
The Panel considers that under paragraph 4(a)(ii) of the Rules, the overall burden of proof is on the Complainant. However, once the Complainant presents prima facie evidence that the Respondent has no rights or legitimate interests, the burden shifts to the Respondent.
First, the Panel considers that in the absence of any license or permission from the Complainant to use such widely-known trademark, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed. Such is the case here, inasmuch as the Complainant is widely-known in the United States and did not give any license or other permission to the Respondent to use the mark NATIONWIDE.
Secondly, there is no evidence that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services at present. In addition, there is no evidence to suggest that the Respondent has been commonly known by the disputed domain name. The name Nationwide has no apparent association with the Respondent.
Therefore, the Panel concludes that the Complainant satisfied the second element under the paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the domain name “has been registered and is being used in bad faith.” As this requirement is conjunctive, the Complainant must establish both bad faith registration and bad faith use. In addition the circumstances listed in paragraph 4(b) of the Policy are not exclusive, and other circumstances may likewise lead to a finding of bad faith registration and use.
First, since the Complainant's mark NATIONWIDE is widely-known in the United States, the Respondent is likely to have registered the disputed domain name with notice of the Complaint's trademark. The Panel considers that the Respondent in all likelihood registered the disputed domain name to benefit from misdirected traffic resulting from typographical errors.
Second, the Panel considers further that the Respondent is merely using the disputed domain name which includes in its entirety the well-known trademark NATIONWIDE to attract Internet users interested in the Complainant's products. This is supported by the fact that the Respondent has run a website located at “www.”, which displays “Sponsored Listings” and pay-per-click links that appear when the user clicks on one of these lists. As a result, the Respondent, by using the disputed domain name, is intentionally misleading the consumers and confusing them so as to benefit from its confusing similarity with the NATIONWIDE mark and from possible typing mistakes by Internet users. The Respondent is therefore illegitimately capitalizing on the NATIONWIDE trademark. Such finding indicates the Respondent's bad faith in the registration and use of the disputed domain name. (See Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; The Nasdaq Stock Market, Inc. v. Act One Internet Solutions,WIPO Case No. D2003-0103)
Based on the foregoing, the Panel is satisfied that bad faith registration and use have been sufficiently established with respect to the domain name in accordance with paragraph 4(b) of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraph 4(a) of the Policy, the Panel finds that: (i) the disputed domain name is identical or confusingly similar to the trade mark owned by the Complainant, (ii) the Respondent has no rights or legitimate interests in the disputed domain name, and (iii) the disputed domain name is registered and used in bad faith.
Therefore, under paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Moonchul Chang
Sole Panelist
Dated: October 14, 2009
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