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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nationwide Mutual Insurance Company v. Rebecca Foster
Case No. D2007-0210
1. The Parties
The Complainant is Nationwide Mutual Insurance Company, Columbus, Ohio, United States of America.
The Respondent is Rebecca Foster, Houston, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <nationwide-auto-insurance-free-car-insurance-quote.com>
is registered with OnlineNic, Inc. d/b/a China-Channel.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hard copy on February 13, 2007. On February 16, 2007, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. On February 25, 2007, OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. On February 26, 2007, the Center received the electronic version of the Complaint. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 February 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 20, 2007.
The Center appointed M. Scott Donahey as the sole
panelist in this matter on April 2, 2007. 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, a mutual insurance company, has engaged in the business of providing insurance services in the United States of America for 80 years. During the last 50 years it has provided services under the service mark, NATIONWIDE. Complainant first registered the service mark, NATIONWIDE, with the United States Patent and Trademark Office (“USPTO”) on August 13, 1968, in connection with the underwriting and sale of all lines of insurance. Complaint, Annex C.
Complainant currently has more than 8,000 exclusive authorized insurance agents and more than 160,000 non-exclusive registered representatives who sell Nationwide’s insurance services throughout the United States of America. Since 1955, Complainant has advertised extensively in publications, radio and television featuring its registered mark. Since 1998, alone, Complainant has spent more than $240 million in advertising and promoting its NATIONWIDE mark in connection with insurance products and services.
Complainant is the largest administrator of qualified retirement plans for the public and private sectors, the fifth largest provider of variable life insurance, the fourth largest insurer of homes in the United States, and the sixth largest American insurer of automobiles. Complainant has registered and uses various “Nationwide” domain names, including <nationwideinsurance.com> and <nationwide.com>.
Respondent registered the domain name at issue on July 29, 2002, and uses the domain name at issue to resolve to a website which offers low cost insurance quotes on automobile and related insurance. Complaint, Annexes A and F. The name “Nationwide Insurance” is displayed prominently on the website, and the use of the mark NATIONWIDE is repeatedly used on the website. Complainant has never licensed or sanctioned Respondent to use its mark. While the website contains numerous links to various insurers who are direct competitors of Complainant, it contains no link to Complainant.
Complainant and Complainant’s counsel attempted
to contact the Respondent by email and by mail at the addresses given in the
Whois but the attempts were returned as undeliverable. The street address listed
in Whois is actually occupied by a different business. Complaint, Annex E.
5. Parties’ Contentions
Complainant contends that the domain name at issue is confusingly similar to the NATIONWIDE mark in which Complainant has rights, that Respondent has no rights or legitimate interests in respect of the domain name at issue, and that Respondent has registered and is using the domain name at issue in bad faith.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall 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.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) that the respondent has no rights or legitimate interests in respect of the domain name; and
(3) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Where a domain name incorporates Complainant’s mark in its entirety,
the domain name is confusingly similar to Complainant’s mark, despite
the addition of other words in the domain name. This is the so-called “objective
test” adopted by the majority of panelists. See Wal-Mart Stores, Inc.
v. Richard MacLeod d/b/a For Sale, WIPO
Case No. D2000-0662. Accordingly, the Panel finds that the domain name at
issue <nationwide-auto-insurance-free-car-insurance-quote.com> is confusingly
similar to Complainant’s registered NATIONWIDE service mark.
B. Rights or Legitimate Interests
The consensus view of WIPO panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
Overview of WIPO Panel Views on Selected UDRP Questions, Section
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain name at issue.
C. Registered and Used in Bad Faith
Complainant attempted to contact Respondent at the street address and email
address given in the Whois. Complainant’s attempts were returned to its
representatives. This suggests that Respondent may have provided false contact
information when registering the domain name at issue. If that were indeed the
case, panels have held that this fact constitutes bad faith. See Wachovia
Corporation v. Peter Carrington, WIPO
Case No. D2002-0775.
However, the facts suggest several elements of bad faith. Respondent is using
the domain name at issue to resolve to a website on which Complainant’s
name and service mark are displayed prominently and which contains links to
Complainant’s direct competitors. Respondent is apparently profiting from
these links to commercial insurance providers. This brings Respondent within
Paragraph 4(b)(iv) of the Policy which lists such conduct as conclusive evidence
of bad faith registration and use. See Adobe Systems Incorporated v. Domain
OZ, WIPO Case No. D2000-0057. The
Panel finds that Respondent has registered and is using the domain name at issue
in bad faith.
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 <nationwide-auto-insurance-free-car-insurance-quote.com> be transferred to the Complainant.
M. Scott Donahey
Dated: April 5, 2007