WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Schneider Group, Inc. v. Jack Mann Case No. D2010-0448 1. The Parties
Complainant is The Schneider Group, Inc. of Arizona, United States of America, represented by Quarles & Brady LLP, United States of America.
Respondent is Jack Mann of Illinois, 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 March 23, 2010. On March 24, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On March 24, 2010, GoD, Inc. transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on March 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 18, 2010.
The Center appointed Sandra J. Franklin as the sole panelist in this matter on April 23, 2010. 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 owns the trademark PROTEK and has been offering insurance products under that mark for 11 years. Complainant provided evidence of its trademark registration for PROTEK with the United States Patent and Trademark Office (USPTO). Complainant conducts business under the domain name . Respondent registered on June 28, 2009 and uses the domain name to redirect traffic to its competing website. 5. Parties' Contentions A. Complainant
1. Respondent's domain name is confusingly similar to Complainant's PROTEK mark.
2. Respondent does not have any rights or legitimate interests in the domain name.
3. Respondent registered and is using the domain name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
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 Management., Inc. v. webnet-marketing, inc., NAF Case No. 95095 (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. Michael Robertson,WIPO Case No. D2000-0009 (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. A. Identical or Confusingly Similar
The Panel finds that Complainant has established rights in the PROTEK mark under Policy paragraph 4(a)(i) through its registration with the USPTO (Registration number No. 2,417,091). See Trip Network Inc. dba Cheap Tickects, Inc. v. Sigfredo Alviera, NAF Case No. 914943 (finding that the complainant's federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to UDRP 4(a)(i)); see also Honeywell International Inc. v. , NAF Case No. 445594 (finding the complainant's numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant's rights in the mark under the UDRP 4(a)(i)).
Respondent's domain name is confusingly similar to Complainant's PROTEK mark. The disputed domain name contains Complainant's entire mark, with the additions of a the generic word “insurance” and the generic top-level domain “gTLD” “.net.” The Panel finds that the additions fail to distinguish the disputed domain name from Complainant's mark, and the disputed domain name is confusingly similar under Policy paragraph 4(a)(i). See Little Six, Inc.dba Mystic Casino Hotel v. Domain For Sale a/k/a Anatoly Polishchuk, NAF Case No. 96967 (finding that is plainly identical to the complainant's MYSTIC LAKE trademark and service mark).
The Panel finds that Policy paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy paragraph 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Domtar, Inc. v. Joel Theriault, NAF Case No. 1089426 (It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.); see also Swedish Match UK Limited. v. Admin, Domain, NAF Case No. 873137 (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy paragraph 4(c)). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy paragraph 4(c).
The WhoIs information lists the registrant as “Jack Mann.” Respondent is not licensed or otherwise permitted to use Complainant's mark in any domain name. With no evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy paragraph 4(c)(ii). See The Braun Corporation v. Wayne Loney, NAF Case No. 699652 (concluding that the respondent was not commonly known by the disputed domain names where the WhoIs information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also M. Shanken Communications Inc. v. WORLDTRAVELERSONLINE.COM, NAF Case No. 740335 (finding that the respondent was not commonly known by the domain name under Policy paragraph 4(c)(ii) based on the WhoIs information and other evidence in the record).
Respondent's domain name resolves to Respondent's website which offers Medical Equipment and Devices Business Insurance in direct competition with Complainant. The Panel finds that Respondent's use of the disputed domain name to redirect Internet users to a competitor of Complainant, presumably for financial gain, does not constitute a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii). See Coryn Group, Inc. v. Media Insight, NAF Case No. 198959 (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Glaxo Group Limited v. WWW Zban c/o David Glenmore, NAF Case No. 203164 (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). Therefore, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name pursuant to Policy paragraph 4(a)(ii).
The Panel finds that Policy paragraph 4(a)(ii) has been satisfied. C. Registered and Used in Bad Faith
Respondent uses the domain name to divert Internet users' seeking Complainant's official “www.” website to Respondent's competing website, thereby disrupting Complainant's business, evidence of bad faith registration and use under Policy paragraph 4(b)(iii). See Tesco Personal Finance Ltd. v. Domain Management Services, NAF Case No. 877982 (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant's competitors represents bad faith registration and use under Policy paragraph 4(b)(iii)); see also St. Lawrence University v. Nextnet Tech c/o Domain Dept, NAF Case No. 881234 (This panel concludes that by redirecting Internet users seeking information on Complainant's educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy paragraph 4(b)(iii)).
Respondent is attempting to profit by creating a likelihood of confusion between Complainant's PROTEK mark and the confusingly similar disputed domain name. The Panel finds that Respondent's use of the disputed domain name is further evidence of bad faith registration and use under Policy paragraph 4(b)(iv). See Allianz of America Corporation v. Lane Bond, NAF Case No. 680624 (finding bad faith registration and use under Policy paragraph 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Zee TV USA, Inc. v. Aamir Siddiqi c/o DotC, NAF Case No. 721969 (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant's mark to offer links to third-party websites that offered services similar to those offered by the complainant).
The Panel finds that Policy paragraph 4(a)(iii) has been satisfied. 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 Complainant.
Sandra J. Franklin
Sole Panelist
Dated: May 5, 2010
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