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Generic Top Level Domain Name (gTLD) Decisions |
Metropolitan Life Insurance Company v.
Michael Huang
Claim
Number: FA0410000356348
Complainant is Metropolitan Life Insurance Company (“Complainant”),
represented by Leon Medzhibovsky, of Fulbright & Jaworski,
666 Fifth Avenue, New York, NY 10103.
Respondent is Michael Huang (“Respondent”), 5 Newton Road #8,
Singapore, SG 307944, SINGAPORE.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwwmetlife.com>, registered with Moniker
Online Services, Inc.
The
undersigned certifies that he has acted independently and impartially and, to
the best of his knowledge, has no known conflict
in serving as Panelist in this
proceeding.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on October
28, 2004; the National Arbitration Forum
received a hard copy of the Complaint
on October 29, 2004.
On
October 28, 2004, Moniker Online Services, Inc. confirmed by e-mail to the
National Arbitration Forum that the domain name <wwwmetlife.com>
is registered with Moniker Online Services, Inc. and that Respondent is the
current registrant of the name. Moniker Online Services,
Inc. has verified that
Respondent is bound by the Moniker Online Services, Inc. registration agreement
and has thereby agreed to
resolve domain-name disputes brought by third parties
in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
November 1, 2004, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"),
setting
a deadline of November 22, 2004 by which Respondent could file a Response to
the Complaint, was transmitted to Respondent
via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing
contacts, and to postmaster@wwwmetlife.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification,
the National
Arbitration Forum transmitted to the parties a Notification of Respondent
Default.
On
December 1, 2004, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration
Forum appointed the
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the National Arbitration Forum
has discharged its
responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name
Dispute Resolution Policy (the "Rules")
"to employ reasonably
available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision
based on the documents submitted and in accordance with the ICANN Policy, ICANN
Rules,
the National Arbitration Forum's Supplemental Rules and any rules and
principles of law that the Panel deems applicable, without
the benefit of any
Response from Respondent.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwwmetlife.com>
domain name is confusingly similar to Complainant’s METLIFE mark.
2. Respondent does not have any rights or
legitimate interests in the <wwwmetlife.com> domain name.
3. Respondent registered and used the <wwwmetlife.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Metropolitan Life Insurance Company, has been providing insurance and other
related services in conjunction with the
METLIFE mark since 1863. Complainant and its affiliates offer a full
range of insurance and other financial products and services. Complainant also has major operations,
affiliates and representative offices throughout the Americas, Europe, and
Asia, including
direct international insurance operations in ten countries. Complainant owns trademark registrations
with the United States Patent and Trademark Office (“USPTO”) for the METLIFE
mark (e.g. Reg.
No. 1,541,862, issued May 30, 1989). Complainant also owns trademark registration rights in numerous
countries around the world, including Argentina, Australia, Austria
and the
European Union.
Respondent
registered the <wwwmetlife.com> domain name on April 28,
2003. Respondent’s domain name resolves
to a website featuring a search engine as well as links to various commercial
websites unrelated
to Complainant.
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.
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.
Complainant has
established that it has rights in the METLIFE mark through registration with
the USPTO and through continued use of
its mark in commerce for over one
hundred forty years. See Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law,
registered marks hold a presumption that they are inherently
distinctive and
have acquired secondary meaning.”); see
also Janus Int’l Holding Co. v.
Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions
have held that registration of a mark is prima
facie evidence of validity, which creates a rebuttable presumption that the
mark is inherently distinctive. Respondent has the burden of
refuting this
assumption).
The addition of
a “www” prefix to Complainant’s registered METLIFE mark fails to sufficiently
differentiate the disputed domain name
from Complainant’s mark. A domain name
consisting of a “www” prefix followed by a registered mark takes advantage of Internet
users
who fail to type the period between the traditional “world-wide web”
abbreviation and the second-level domain name they are attempting
to reach. The
dominant feature of the disputed domain name in this case remains Complainant’s
distinctive METLIFE mark. See Neiman
Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002)
(holding confusing similarity has been established because the prefix
"www" does
not sufficiently differentiate the
<wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark);
see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328
(Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's <wwwdana.com>
domain name confusingly similar to Complainant's
registered DANA mark because
Complainant's mark remains the dominant feature).
The Panel finds that Policy ¶ 4(a)(i) has
been satisfied.
Respondent has
failed to respond to the Complaint.
Therefore, the Panel accepts all reasonable allegations set forth in the
Complaint as true. See Am.
Online, Inc. v. Clowers, FA 199821 (Nat. Arb. Forum Nov. 14, 2003)
(finding that the failure to challenge a complainant’s allegations allows a
panel to accept
all of the complainant’s reasonable allegations and inferences
as true); see also Wells
Fargo & Co. v. Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003)
(finding that the failure to respond to a complaint allows a panel to make
reasonable inferences
in favor of a complainant and accept the complainant’s
allegations as true).
In addition, the
Panel construes Respondent’s failure to respond as an admission that Respondent
lacks rights and legitimate interests
in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as
an admission that they have no
legitimate interest in the domain names); see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29,
2004) (“The failure of Respondent to respond to the Complaint functions both as
an implicit
admission that Respondent lacks rights to and legitimate interests
in the domain names, as well as a presumption that Complainant’s
reasonable
allegations are true.”).
Furthermore,
nothing in the record establishes that Respondent is commonly known by the
disputed domain name. Moreover,
Respondent is not licensed or authorized to register or use domain names that
incorporate Complainant’s mark.
Therefore, the Panel concludes that Respondent lacks rights and
legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly
known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also Charles Jourdan Holding AG v.
AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate
interests where (1) Respondent is not a licensee of Complainant;
(2)
Complainant’s prior rights in the domain name precede Respondent’s
registration; (3) Respondent is not commonly known by the
domain name in
question).
Respondent is
using the <wwwmetlife.com> domain name to redirect Internet users
to a website that displays a generic search engine as well as links to various
products and
services unrelated to Complainant or its METLIFE mark. Respondent’s use of a domain name
confusingly similar to Complainant’s registered mark to divert Internet users
to Respondent’s website,
which features a search engine and hyperlinks, is not
a use in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the
domain name pursuant
to Policy ¶ 4(c)(iii).
See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb.
Forum Mar. 17, 2003) (finding that Respondent’s diversionary use of
Complainant’s mark to attract Internet
users to its own website, which
contained a series of hyperlinks to unrelated websites, was neither a bona fide
offering of goods
or services nor a legitimate noncommercial or fair use of the
disputed domain names); see also Pioneer Hi-Bred Int’l Inc. v. Chan,
FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that Respondent did not have
rights or legitimate interests in a domain name that
used Complainant’s mark
and redirected Internet users to website that pays domain name registrants for
referring those users to its
search engine and pop-up advertisements); see
also MSNBC Cable, LLC v. Tysys.com,
D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in
the famous MSNBC mark where Respondent attempted to
profit using Complainant’s
mark by redirecting Internet traffic to its own website).
Furthermore, the
fact that Respondent’s domain name is merely a typosquatted variation of
Complainant’s mark tends to prove that Respondent
lacks any rights or
legitimate interests in the disputed domain name pursuant to Policy ¶
4(a)(ii). See Diners Club Int’l Ltd.
v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum
June 23, 2003) (holding that Respondent’s <wwwdinersclub.com> domain
name, a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in
and of itself that Respondent lacks rights
or legitimate interests in the
disputed domain name vis á vis Complainant); see also Black &
Decker Corp. v. Khan, FA 137223
(Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where
Respondent used the typosquatted <wwwdewalt.com>
domain name to divert
Internet users to a search engine webpage, and failed to respond to the
Complaint).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
The Panel infers from
Complainant’s uncontested allegations that Respondent redirects the disputed
domain name to a website featuring
a search engine and various commercial links
in order to receive referral fees, commissions, or some other form of
commercial gain.
In registering a misspelled and confusingly similar variation
of Complainant’s METLIFE mark for this purpose, Respondent fosters
a likelihood
of confusion in the minds of Internet users for commercial gain, which is
evidence of bad faith use and registration
of a domain name pursuant to Policy
¶ 4(b)(iv). See Bama Rags, Inc. v.
Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where
Respondent attracted users to advertisements); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith
where Respondent linked the domain name to another website, presumably
receiving a portion of the advertising revenue from the site, thus using a
domain name to attract Internet users for commercial gain).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <wwwmetlife.com> domain name be TRANSFERRED
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
December 13, 2004
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