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ADMINISTRATIVE PANEL DECISION
Asurion Corporation v. Hong Kong Names LLC
Case No. D2007-0290
1. The Parties
The Complainant is Asurion Corporation, San Mateo, California, United States of America, represented by Adams and Reese LLP, United States of America.
The Respondent is Hong Kong Names LLC, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name <assurion.com> (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on February 27, 2007 and in hard copy on March 2, 2007, naming “Whois Data Shield” as the respondent. The Center transmitted its request for registrar verification to the Registrar on March 1, 2007. The Registrar responded on March 8, 2007, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name was locked, and that the registration agreement was in English and contained a submission by the registrant to the jurisdiction at the location of its principal office. However, the Registrar identified the registrant as “Hong Kong Names LLC” and provided the full contact details in respect of the Domain Name on its Whois database.
The Center notified the Complainant that the Registrar had identified the registrant as Hong Kong Names LLC. The Complainant submitted an amended Complaint by email on March 12, 2007, naming Hong Kong Names LLC as an additional respondent. In line with the current data supplied by the Registrar and the approach followed in Xtraplus Corporation v. Flawless Computers, WIPO Case No. D2007-0070, the Panel will treat Hong Kong Names LLC as the Respondent in this proceeding.
The Center verified that the amended Complaint satisfied the formal requirements of 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 the Respondent of the Complaint, and the proceedings commenced on March 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 18, 2007.
The Center appointed Jonathan Turner as the sole panelist in this matter on May 3, 2007. 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. Having reviewed the file, the Panel is satisfied that the amended Complaint complies with applicable formal requirements, was duly served on the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant supplies insurance and warranty management services protecting customers against loss, theft, damage and malfunction of hand-held wireless devices. It currently serves over 50 million wireless subscribers from 9 locations in the United States of America and 5 locations in Asia.
The Complainant has provided its services under the mark ASURION since 2001, and has registered ASURION as a trademark in the United States and a number of other countries and jurisdictions. In 2005, the Complainant spent in excess of US$5 million promoting the mark and services sold under the mark. It operates a website at “www.asurion.com” and has registered other domain names comprising “asurion”, a generic domain name suffix and (in some cases) a descriptive term, such as “feedback”.
The Domain Name was originally registered on September 17, 2002. As of November 2006, it was registered in the name of Whois Data Shield, which appears to be a proxy registration service. On December 11, 2006, the Complainant sent a cease and desist letter to Whois Data Shield, which did not reply. According to Network Solutions' Whois database, the Domain Name was still registered in the name of “Whois Data Shield” on February 26, 2007. As mentioned above, the Complaint was transmitted to the Center and Registrar by email on February 27, 2007. The Domain Name was registered in the name of the Respondent with new contact details by March 8, 2007, when the Registrar responded to the Center's verification request.
The Domain Name resolves to a website whose pages carry the banner: “Welcome to Assurion.com / For resources and information on Phone Loss and Customer service”. Links on the home page under terms such as “Phone Loss”, “Phone theft”, “Cellphone”, “Asurion” and “Mobile phone insurance” connect to further web pages which display links to websites of providers of mobile telephone insurance services, including the Complainant and competitors of the Complainant.
5. Parties' Contentions
The Complainant contends that the Domain Name is confusingly similar to its registered mark ASURION, particularly as users may misspell or mistype this mark as “assurion”.
The Complainant further maintains that the Respondent has no rights or legitimate interests in the Domain Name and that its use of the Domain Name is not a bona fide offering of goods or services, but rather an exercise in “typo-squatting”.
Finally, the Complainant alleges that the Domain Name was registered and is being used in bad faith, in particular to mislead internet users by confusion with the Complainant's mark and to obtain click-through commissions from diverting such users through sponsored links to websites of the Complainant's competitors.
The Complainant requests an order that the Domain Name be transferred to it.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
Each of these requirements will be considered in turn:
A. Identical or Confusingly Similar to Mark in which Complainant has Rights
The Panel finds that the Complainant has registered rights in the mark ASURION.
The Domain Name differs from this mark by the insertion of a single letter “s” and the addition of the generic “.com” suffix. The Panel is satisfied that the Domain Name is confusingly similar to the Complainant's mark, bearing in mind the possibility of imperfect recollection, misspelling or mistyping on the part of Internet users.
The Panel concludes that the first requirement of the Policy is satisfied.
B. Rights or Legitimate Interests of Respondent
The Complainant's evidence that the Respondent's name is not ASSURION and that it has never been commonly known by this name is undisputed.
In the view of the Panel, the Respondent's use of the Domain Name does not constitute a bona fide offering of goods or services so as to confer rights or legitimate interests within the meaning of the Policy. Nor is it legitimate non-commercial or fair use. On the contrary, the Panel considers that it is a use in bad faith seeking to profit from confusion with the Complainant's mark by diverting internet users through sponsored links to websites of the Complainant's competitors.
In all the circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
The two parts of third requirement of the Policy are cumulative conditions: the Complainant must show that the disputed domain name both was registered and is being used in bad faith. On the other hand, it is clear from the Policy and confirmed by decisions under it that “registration” for this purpose includes registration in the name of a new registrant: see e.g. MC Enterprises v. Mark Segal,
WIPO Case No. D2005-1270, and Indeenhaus Kommunikationsagentur GmbH v. Ideenhaus GmbH,
WIPO Case No. D2004-0016.
The Panel is satisfied by the undisputed evidence that the Respondent is in all likelihood using the Domain Name intentionally to attract Internet users to its website through confusion with the Complainant's ASURION mark in order to obtain commercial gain in the form of click-through commissions when they are diverted to competitors' websites.
Furthermore, the Panel considers it highly likely that the Domain Name was originally registered with the same and/or some other bad faith intent. At that date the Complainant was already a well-established business and had recently adopted its ASURION mark, which is an invented word, not obviously descriptive of any goods or services. There seems to be no plausible reason for a third party to have registered the Domain Name other than to cause confusion with the Complainant.
In any case, the Domain Name has recently been registered in the name of the Respondent, evidently with the intent of using it in bad faith as described above. All of the contact details of the new registration in the name of the Respondent differ from the previous registration in the name of Whois Data Shield, and the Panel considers that it should be treated as a new registration for the purpose of this requirement of the Policy. Even if the Domain Name was previously registered in the name of Whois Data Shield as a proxy for the benefit of the Respondent or of one of its clients (as to which there is no evidence), the Panel sees no reason to make a special exception for proxy registration services from the principle that registration in the name of a new proprietor is a new registration for this purpose.
The Panel concludes that the Domain Name both was registered and is being used in bad faith and accordingly that the third requirement of the Policy is satisfied.
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, <assurion.com>, be transferred to the Complainant.
Dated: May 17, 2007