Westmore · UDRP DecisionThebestpetplan.com
The Panel ordered transfer of <thebestpetplan.com>. It found the domain confusingly similar to the Complainant’s registered PETPLAN mark because PETPLAN remained the dominant element and the descriptive term “best” did not distinguish it. The Respondent lacked rights or legitimate interests because he was not known by the domain, was neither affiliated with nor authorized by the Complainant, and had used the domain for competitor click-through links before it resolved to a blank page. The same click-through use, coupled with the Panel’s finding that the Respondent was likely aware of the PETPLAN rights when registering the domain, established bad-faith registration and use. The later blank page did not cure the prior bad-faith use.
The timeline behind thebestpetplan.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind thebestpetplan.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that adding laudatory wording such as “best” to a trademark may reinforce rather than dispel confusing similarity, particularly where the wording relates to the quality of the trademark owner’s services. It also shows that replacing a competitor-link page with a blank page does not necessarily cure earlier bad-faith use. An equivocal consent to transfer may still require a panel to determine all three UDRP elements on the merits.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Pet Plan Ltd v. Marc Castonguay Case No. D2015-2116 1. The Parties The Complainant is Pet Plan Ltd of Guildford, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) represented by CSC Digital Brand Services AB, Sweden. The Respondent is Marc Castonguay of Davie, Florida, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <thebestpetplan.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2015. On November 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 23, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 25, 2015. The Center verified that the 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 November 26, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 16, 2015. The Response was filed with the Center on December 3, 2015. The Center appointed Christopher J. Pibus as the sole panelist in this matter on December 10, 2015. 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 offers pet insurance to individuals and pet care professionals in the United Kingdom and internationally. The Complainant was founded in the United Kingdom in 1976 and has operated continuously under the trade name “Pet Plan”. The Complainant owns 12 trademark registrations around the world for its PET PLAN trademark, including: United States Trademark No. 3161569 PETPLAN, registered October 24, 2006 United States Trademark No. 3122052 PETPLAN & design, registered May 6, 2014 Canadian Trademark No. TMA463628 PET PLAN, registered September 27, 1996 Canadian Trademark No. TMA592526 PET PLAN, registered October 17, 2003 Community Trademark No. 000328492 PETPLAN, registered October 16, 2000 Community Trademark No. 001511054 PETPLAN, registered December 18, 2001 Community Trademark No. 011470465 PETPLAN + design, registered July 12, 2013 Australian Trademark No. 918123 ETPLAN, registered September 29, 2005 Australian Trademark No. 1534617 PETPLAN, registered November 21, 2013 United Kingdom Trademark No. 2052294 PETPLAN, registered January 17, 1997 United Kingdom Trademark No. 2222270 PETPLAN, registered April 6, 2001 United Kingdom Trademark No. 2645992 PETPLAN, registered June 14, 2013 The Complainant has been recognized by the industry, including winning “Your Dog Best Pet Insurance” and “Your Cat Best Pet Insurance” awards from 2008 to 2013, and has won or been recognized as “Highly Commended” by the Consumer Moneyfacts Awards from 2011 to 2014. The Complainant owns numerous domain names incorporating the PET PLAN trademark, including: <mypetplan.co>, <mypetplan.co.uk>, <mypetplan.com>, <petplan.biz>, <petplan.co>, <petplan.co.uk>, <petplan.com>, <petplan.com.au>, <petplan.com.pl>, <petplan.cz>, <petplan.eu.com>, <petplan.fr>, <petplaninsurance.net>, <petplaninsurance.org>, <thepetplan.com>, <thepetplaninsurance.co.uk>. A complete list of domain names owned by the Complainant is included in Annex 7 of the Complaint. The Complainant’s website, “www.petplan.co.uk” receives approximately 400,000 visits per month. Additionally, the Complainant’s website, “www.petplan.com”, receives approximately 21,000 visits per month. The disputed domain was registered on March 23, 2013. 5. Parties’ Contentions A. Complainant (a) Identical or Confusingly Similar The Complainant relies on its trademark registrations for the trademark PETPLAN, as listed in section 4 above. The Complainant contends that the disputed domain name <thebestpetplan.com> is confusingly similar to the PETPLAN trademark. The Complainant contends that the addition of the generic and descriptive word “best” does not serve to distinguish the disputed domain name from the Complainant’s registered trademark PETPLAN. The Complainant further contends that, in fact, the descriptive term “best” adds to the confusion between the disputed domain name and the Complainant’s trademark. (b) Rights or Legitimate Interest The Complainant contends that its rights in the trademark PETPLAN significantly predate the registration of the disputed domain name by the Respondent. The Complainant notes that the Respondent is not sponsored by or affiliated with the Complainant, nor has the Complainant given the Respondent permission to use the Complainant’s trademarks. The Respondent has never been and is not currently known by the disputed domain name. The Complainant further submits that the Respondent is not using the disputed domain name in a bona fide offering of goods and/or services, nor as a legitimate noncommercial fair use, as the Respondent was previously operating a click-through site which provides links to third parties who are competitors of the Complainant, and the disputed domain name currently resolves to a blank page. (c) Registered and Used in Bad Faith The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith because the Respondent must have been aware of the Complainant’s PETPLAN marks and services. The Complainant submits that the Respondent registered the disputed domain name to mislead Internet users and to capitalize on the fame and goodwill of the Complainant’s trademarks for the purposes of monetary gain by providing sponsored links to direct competitors of the Complainant. The Complainant further contends that the Respondent’s current use of the disputed domain name to resolve to a blank page is further evidence of bad faith under the Policy. B. Respondent The Respondent has submitted a brief Response in which he both denies allegations in the Complaint and also consents to the remedy requested by the Complainant. The Respondent has submitted no factual or legal contentions in support of his position. 6. Discussion and Findings The Respondent was not unequivocal in his consent to the remedies requested by the Complainant. As such, it is necessary for the Panel to review the facts and arguments, and make a finding based on the merits of the matter under the Policy. According to paragraph 4(a) of the Policy, in order to succeed, the complainant must establish each of the following elements: (i) The disputed domain name is identical or confusingly similar to the trademark 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 and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has established registered trademark rights in the mark PETPLAN by virtue of its trademark registrations, listed in section 4 above. The Panel further finds that the disputed domain name <thebestpetplan.com> is confusingly similar to the Complainant’s registered trademark PETPLAN. The disputed domain name contains as a dominant element the Complainant’s trademark PETPLAN, combined with the descriptive term “best”. The addition of this term does not serve to distinguish the disputed domain name; rather it suggests the quality of services provided, and the industry awards the Complainant has won. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Respondent did not file any factual or legal contentions in support of his position. Accordingly, the statements and evidence submitted by the Complainant are accepted by the Panel as uncontradicted support for the Complainant’s positions and arguments. The Panel finds that the Respondent is not commonly known by the name “TheBestPetPlan”, is not sponsored or affiliated with the Complainant, and was never authorized or licensed by the Complainant to use the disputed domain name. The Complainant has filed sufficient evidence to support its claim to have used the PETPLAN trademark and trade name since at least as early as September 27, 1996. As a result of this evidence, and with no response from the Respondent to the contrary, the Panel is prepared to accept that the Respondent was likely aware of the Complainant’s trademark and services. The Panel can find no evidence on the record to support a finding that the Respondent had a legitimate interest or right to register the disputed domain name. Furthermore, the Panel is prepared to find that the Respondent is not using the disputed domain name in a bona fide manner. The use of a confusingly similar domain name to the Complainant’s PETPLAN trademark, in association with a click-through site which provides links to third parties which are competitors of the Complainant is not evidence of a bona fide service or offering of goods under the Policy. Additionally, the Respondent’s current use of the domain name to resolve to a blank page lacking content is not evidence of a bona fide service or offering of goods under the Policy. Accordingly, the Panel finds that the Complainant has satisfied the required under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is prepared to find, on the evidence filed, that the Respondent was likely aware of the Complainant’s trademark rights in PETPLAN when he registered the disputed domain name on March 23, 2013. The Panel concludes that the Respondent has acted in bad faith by attempting to trade on the goodwill and reputation of the Complainant’s PETPLAN marks by operating a click-through website which provides links to third party entities who are competitors of the Complainant and this bad faith use has not been cured by the current use of the disputed domain name to resolve to a blank page. In these circumstances, the current use of the disputed domain name constitutes bad faith use under the Policy. The Panel finds, in the absence of any evidence to the contrary, that the disputed domain name was registered and used in bad faith. The Panel finds that the Complainant has satisfied the requirement under Paragraph 4(a)(iii) of the Policy. 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 <thebestpetplan.com> be transferred to the Complainant. Christopher J. Pibus Sole Panelist Date: December 22, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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