The Complainant is Insubuy, Inc., United States of America (“US”), represented St. Onge Steward Johnston & Reens LLC, US.
The Respondent is Elham Malmiri, Iran (Islamic Republic of). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 25, 2021. On March 2, 2021, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Disputed Domain Name. On March 3, 2021, IRNIC 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 .ir Domain Name Dispute Resolution Policy (the “Policy” or “irDRP”), the Rules for .ir Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .ir 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 March 5, 2021. In accordance with the Rules, paragraph 5(a), the due date for Response was March 25, 2021. On March 26, 2021, the Center notified the Respondent’s default. The Center appointed Gabriela Kennedy as the sole panelist in this matter on April 9, 2021. 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 US-based InsureTech company established in 2000. The Complainant is the owner and operator of the website “www.insubuy.com”, which was created in 2002 and offers an online marketplace for various insurance plans. The Complainant has been using the INSUBUY trade mark for insurance services since at least 2002. The Complainant is the owner of numerous trade mark registrations for the INSUBUY trade mark in various jurisdictions, including, inter alia, the INSUBUY trade mark (Reg. No. 4,123,832) registered on April 10, 2012 in the US, the international INSUBUY trade mark (Reg. No. 1133417) registered on August 23, 2012 and the INSUBUY trade mark (Reg. No. 1577184) registered on July 10, 2007 in India. The Complainant also owns and operates dozens of domain names including The Disputed Domain Name The Complainant’s primary contentions can be summarised as follows: (a) the Disputed Domain Name incorporates the Complainant’s INSUBUY trade mark in its entirety and is therefore identical to the Complainant’s INSUBUY trade mark; (b) the Respondent does not have any rights or legitimate interests in the Disputed Domain Name. The Complainant has never authorised or given permission to the Respondent, who is not associated with the Complainant in any way, to use its INSUBUY trade mark. The Respondent is not and has never been commonly known by the Disputed Domain Name. The Respondent’s use of the Disputed Domain Name is not a bona fide offering of goods or services, nor does it constitute a legitimate noncommercial or fair use of the Disputed Domain Name; and (c) the Respondent’s use and registration of the Disputed Domain Name satisfies the bad faith element. As the Disputed Domain Name is being used to provide competing services, the Respondent is intentionally attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s INSUBUY trade mark. The Respondent must have been aware of the Complainant’s INSUBUY trade mark when they registered the Disputed Domain Name and the Respondent’s constructive and actual notice of the Complainant’s mark is further evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. The fact that the Respondent has not submitted a formal Response does not automatically result in a decision in favour of the Complainant. However, the Respondent’s failure to file a Response may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complainant as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies,WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-04031 ). 6. Discussion and Findings Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered or is being used by the Respondent in bad faith. A. Identical or Confusingly Similar The Panel accepts that the Complainant has rights in the INSUBUY trade mark, based on its various trade mark registrations. It is well established that in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the country code Top-Level Domain extension (“.ir” in this case) may be disregarded. See section 1.11 of the WIPO Overview 3.0. The Disputed Domain Name incorporates the Complainant’s INSUBUY trade mark in its entirety without any prefixes or suffixes. As such, the Panel finds that the Disputed Domain Name is identical to the Complainant’s INSUBUY trade mark, and accordingly, paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests Once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent in a disputed domain name, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See section 2.1 of the WIPO Overview 3.0. The Panel accepts that the Complainant has not authorised the Respondent to use the INSUBUY trade mark, and there is no relationship between the Complainant and the Respondent, which would otherwise entitle the Respondent to use the INSUBUY trade mark. Accordingly, the Panel is of the view that a prima facie case has been established and it is for the Respondent to show rights or legitimate interests in the Disputed Domain Name. As the Respondent has not submitted a Response, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainant’s evidence. Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Name by demonstrating any of the following: (i) before any notice to them of the dispute, the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name was in connection with a bona fide offering of goods or services; (ii) the Respondent has been commonly known by the Disputed Domain Name, even if he has acquired no trade mark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. There is no evidence to suggest that the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name was in connection with a bona fide offering of goods or services. The Panel agrees that the Respondent’s use of the Disputed Domain Name cannot be regarded as legitimate noncommercial or fair use as the Disputed Domain Name is identical to the Complainant’s INSUBUY trade mark and resolves to a website on which insurance services from an unrelated entity are being provided. Such use of the Disputed Domain Name is capable of misleading and diverting visitors and/or tarnishing the Complainant’s INSUBUY trade mark. In addition, there is no evidence to prove that the Respondent has any trade mark rights corresponding to the Disputed Domain Name, or that he or she has become known by the Disputed Domain Name. Furthermore, panels have found that domain names identical to a complainant’s trademark carry a high risk of implied affiliation. See section 2.5.1 of the WIPO Overview 3.0. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered or Used in Bad Faith UDRP panels have consistently found that the mere registration of a domain name that is confusingly similar to a widely-known trade mark, by an unaffiliated entity (particularly domain names which incorporate a mark plus a descriptive term) can already by itself create a presumption of bad faith. See section 3.1.4 of the WIPO Overview 3.0. The Complainant’s INSUBUY trade mark appears to be fairly well-known. A quick Internet search shows that the top search results returned for “insubuy” are the Complainant’s official website and several third party websites making references to the Complainant or its services. As the Disputed Domain Name In addition, the Panel finds that the following factors further support a finding that the Disputed Domain Name was registered and is being used by the Respondent in bad faith: (i) the Respondent failed to respond to the Complainant’s contentions and has provided no evidence of any actual or contemplated good faith use of the Disputed Domain Name; (ii) it is difficult to conceive of any plausible use of the Disputed Domain Name that would amount to good faith use, given that the Disputed Domain Name is identical to the Complainant’s INSUBUY mark and similar to its domain name (iii) the Disputed Domain Name resolves to a website offering similar services to those of the Complainant, which is likely to mislead Internet users into believing that it is the Complainant’s official website in Iran (Islamic Republic of) or is associated with and/or endorsed by the Complainant, thereby causing harm to the Complainant’s legitimate rights. In the circumstances, the Panel finds that the Respondent registered and has been using the Disputed Domain Name in bad faith, and paragraph 4(a)(iii) of the Policy has been satisfied. 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 Disputed Domain Name Gabriela Kennedy 1 Given the similarities between the irDRP and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), this Panel will make reference to the UDRP, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and the cases cited therein, where relevant.
Sole Panelist
Date: April 22, 2021
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