The Complainant is CNO Financial Group, Inc., United States of America (“United States”), represented by Ice Miller LLP, United States.
The Respondent is Contact Privacy Inc. Customer 1241662639, Canada / Angel Solis, United States, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2020. On June 30, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 30, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 2, 2020 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 July 7, 2020. 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 July 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2020. The Response was filed with the Center on July 30, 2020. The Center appointed W. Scott Blackmer as the sole panelist in this matter on August 13, 2020. 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 a financial services holding company organized as a corporation under the law of the State of Delaware in the United States and headquartered in Carmel, Indiana, United States. Incorporated in 1979, the Complainant became a publicly traded company in 1985 under the name “Conseco, Inc”. but was rebranded in 2010 as “CNO Financial Group, Inc.” The group provides insurance for more than four million middle-income Americans. With 2019 net revenues reported as USD 409.4 million, the Complainant is currently listed in the Fortune 1000 and was ranked in the top 50 among the most trusted financial institutions in the United States by Forbes magazine in April 2014. The Complainant’s primary website is at “www.cnoinc.com” (the “Complainant’s website”), and its brand is advertised online and in print and other media. The record includes evidence of substantial media recognition of the company and its brand, particularly for its community involvement and philanthropic activities. Forbes named the Complainant as one of the “2020 Best Employers for Diversity”, and the Complainant received number one ranking among the “2019 Healthiest 100 Workplaces in America”. A wholly owned subsidiary of the Complainant, CDOC, Inc., holds the following United States trademark registrations used by the Complainant in its business: Mark Registration Number Registration Date CNO (standard characters) 3894349 December 21, 2010 CNO FINANCIAL GROUP (standard characters) 3932012 March 15, 2011 CNO (standard characters) 4109436 March 6, 2012 The Registrar reports that the Domain Name was created on April 2, 2020 and was registered in the name of a domain privacy service. Following the Request for Registrar Verification of this UDRP proceeding, the Registrar identified the registrant as the Respondent Angel Solis, United States. The Complainant demonstrates (with a browser log and a screenshot from the Internet Archive’s Wayback Machine) that in May 2020 the Domain Name redirected to the Complainant’s website. At the time of this Decision, the Domain Name does not resolve to an active website. The Complainant’s representative sent cease-and-desist notices on May 22, 2020 to the Respondent through the privacy service previously listed as the registrant of record, without reply. This proceeding followed. 5. Parties’ Contentions A. Complainant The Complainant asserts that the Domain Name is confusingly similar to its registered CNO and CNO FINANCIAL GROUP trademarks, incorporating the characters “cno” and adding “fg”, which could be read as the abbreviation for “financial group”. The Complainant contends that the Respondent has no permission to use the Complainant’s marks and no evident rights or legitimate interests in the Domain Name, which has been used suspiciously to redirect to the Complainant’s own primary website. According to the Complainant, this does not evince a legitimate use in connection with a bona fide commercial or noncommercial fair use by the Respondent, but it does demonstrate the Respondent’s awareness of the Complainant. “Respondent has registered and redirected internet traffic of the Disputed Domain Name for illegitimate purposes – most likely to launch a phishing attack, which is clear evidence of bad faith registration and use. After first creating a strong likelihood of confusion by misappropriating the Complainant’s trademark in the Disputed Domain Name, Respondent then redirects Internet traffic to Complainant’s website. Respondent’s efforts to masquerade as Complainant evince an attempt to commit fraud. If Complainant did not identify and mitigate against such suspicious activity, Respondent may have been successful in exploiting the confusion created by the Disputed Domain Name and redirection of Internet traffic to carry out a fraudulent scheme, which must be considered bad faith registration and use of the Disputed Domain Name.” According to the Complainant, the use of a domain privacy service to obscure the Respondent’s identity, and the Respondent’s subsequent failure to respond to cease-and-desist notices, further support the inference of bad faith. B. Respondent The Response does not challenge the Complainant’s trademark rights but argues that the Respondent has legitimate reasons for selecting the string used as the Domain Name and suggests that it is not likely to cause confusion: “The domain was purchased on or around April 2020 through google domains. The domain was purchased for the purpose of hosting a website for a potential new business. Coin-Network Ops Fight Games. A barcade (bar + arcade). As bars are still closed due to COVID19 in the State of California, the new business has not yet been formed and will not be until bars are cleared to reopen. […] The domain will be used in an entirely different context from Complainant’s use. Complainant is a financial services company and does not operate any bars or arcades or barcades. The only similarity are the initials. […] Complainant contends that the domain is/will be used for phishing attempts against them. T hat is inaccurate, the domain has never been used to conduct a phishing attempt during respondent’s ownership against Complainant (or Complainant’s clients) or in any other form of bad faith.” 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the domain name 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 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 The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a reasoned but relatively straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Domain Name incorporates the Complainants’ registered CNO mark in its entirety, adding the letters “fg”. The Complainant points out that this might readily be confused with the abbreviation for the words following “CNO” in the Complainant’s company name and second registered mark, CNO FINANCIAL GROUP. In any event, the addition of generic terms or characters to a string that entirely incorporates a trademark does not prevent a finding of confusing similarity under this element of the Policy. WIPO Overview 3.0, section 1.8. The generic Top-Level Domain ("gTLD") “.com” “is viewed as a standard registration requirement” and as such is normally disregarded under the first element of the Policy. WIPO Overview 3.0, section 1.11.2. The Panel concludes, therefore, that the first element of the Complaint has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or (ii) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant in this proceeding has demonstrated its trademark rights and a lack of permission for the Respondent to use the Complainant’s mark in the Domain Name. The Respondent claims that the Domain Name corresponds to the initials of its planned business, Coin-Network Ops Fight Games. The Respondent offers no evidence, however, of a legal entity with a corresponding name, website or game development, or other preparations for such a business or use of the Domain Name supporting a legitimate interest as envisioned by the Policy, paragraph 4(c)(i). See WIPO Overview 3.0, section 2.2. The Panel finds that the Respondent has failed to demonstrate rights or legitimate interests in the Domain Name. The Complainant prevails on the second element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”. None of these examples squarely fits the circumstances of this proceeding, but they are not exclusive instances of bad faith. The Domain Name has not been used to date for a website developed by the Respondent or for a website of third parties but rather, until recently, to redirect Internet users to the Complainant’s own website. As the Complainant observes, this does not occur accidentally and demonstrates that the Respondent was clearly aware of the Complainant. Indeed, such activity is often a precursor to a fraudulent phishing attack, as it lends credibility to emails using the domain name in question. The victim finds that the email domain name appears to be legitimate and is therefore more likely to engage in communication with the sender. At best, the recipient may be the target of aggressive marketing for products or services unrelated to the trademark holder; at worst, the recipient may be persuaded to furnish personal or company details, transfer funds, or otherwise fall victim to a criminal scheme. The Respondent does not deny prior awareness of the Complainant but states that the Domain Name has not been used for any illicit purposes since the Respondent acquired it. However, the Respondent fails to explain why the Domain Name was redirected to the Complainant’s website after the Respondent acquired the Domain Name. It is hard to imagine a legitimate reason for this conduct. The record shows that the Complainant’s trademarks are well known in the United States, and the redirection of the Domain Name confirms that the Respondent was aware of the Complainant. The Respondent claims an interest in the Domain Name for a prospective business but shows no evidence of plans or preparations for such a business. On balance, and especially given the unexplained, confusing, and potentially sinister redirection of the Domain Name to the Complainant’s website, the Panel finds on this record that the Respondent more probably than not registered and used the Domain Name in bad faith within the meaning of the Policy. While there are legitimate reasons for a registrant to use a domain privacy service, the Respondent’s failure to respond to the Complainant’s communications concerning its trademarks supports an inference of bad faith. The Panel finds bad faith in the registration and use of the Domain Name and concludes that the Complainant prevails on the third element of the Complaint. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name W. Scott Blackmer
Sole Panelist
Date: August 18, 2020
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