Westmore · UDRP DecisionMedipetplan.com
The Panel ordered transfer of <medipetplan.com>. It found the domain confusingly similar to the Complainant’s PETPLAN mark because it incorporated the mark in full with only the commonly used prefix “medi.” The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which went unrebutted. Based on the established PETPLAN business and mark, the Respondent’s likely awareness of them, and use of the domain for a pay-per-click parking page, the Panel found bad-faith registration and use under paragraph 4(b)(iv) of the Policy.
The timeline behind medipetplan.com
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This decision illustrates how full incorporation of a trademark combined with a suggestive prefix may remain confusingly similar, and how pay-per-click parking can support both the absence of legitimate interests and bad faith when the record also supports an inference that the registrant knew of the earlier mark. The Respondent’s default did not automatically determine the case, but it left the Complainant’s prima facie showing and the Panel’s knowledge and commercial-attraction inferences unrebutted.
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. Blake Brossman Case No. D2016-0003 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 Blake Brossman of Lynbrook, New York, United States of America. 2. The Domain Name and Registrar The disputed domain name <medipetplan.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 January 4, 2016. On January 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 5, 2016, 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. 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 January 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 27, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 29, 2016. The Center appointed Alistair Payne as the sole panelist in this matter on February 8, 2016. 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 provides pet insurance for domestic and exotic pets both in the United Kingdom and around the globe through various licensees and currently in the United States, Canada, Australia, New Zealand, Brazil, Germany, and the Netherlands. In addition, it offers insurance to pet care professionals and a pet finding service. The Complainant was founded in 1976, is based in Brentford, United Kingdom and is now a subsidiary of Allianz Insurance plc. The Complainant has continually operated its business under the PETPLAN name or mark and owns trade mark registrations for PETPLAN in various countries, including in the United States under trade mark number 3161569 for PETPLAN in fancy script dating from 2004 and in the United Kingdom for PETPLAN in fancy script under trade mark registration number 2052294 dating from 1996 and a Community Trade Mark registration under number 001511054 also for PETPLAN in fancy script dating from 2000. The Complainant owns various domain names incorporating its PETPLAN trade mark, including at <petplan.co.uk> and <petplan.com>. The disputed domain name was registered on August 30, 2013. 5. Parties’ Contentions A. Complainant The Complainant submits that it owns registered trade mark rights as noted above. It says that the disputed domain name wholly incorporates its PETPLAN mark and only differs from the Complainant’s mark by the inclusion of the generic prefix “medi”. The Complainant submits that this term does not distinguish the disputed domain name and as a result that the disputed domain name is confusingly similar to its PETPLAN mark. The Complainant submits that the Respondent is not sponsored by or affiliated with the Complainant in any way, and has not given the Respondent permission to use the Complainant’s trade marks. Nor, says the Complainant, is the Respondent commonly known by the disputed domain name. The Complainant says that the Respondent must have known of its mark and business at the registration date of the disputed domain name (being August 30, 2013). By that time its trade marks in the United States and in the United Kingdom had been long registered and it had been in business for several decades, had been licensed in numerous countries and had been consistently ranked the number one pet insurance provider in the United Kingdom. The Complainant notes that it has numerous awards to its credit including Consumer Moneyfacts Awards – Highly Commended (2014) and Your Dog Best Pet Insurance 2013 – Winner and Your Cat Best Pet Insurance 2013 – Winner which demonstrates the Complainant’s fame. Further, says the Complainant, performing Internet searches across a number of Internet search engines would have alerted the Respondent to the Complainant, its mark and business. As a consequence the Complainant asserts that the Respondent must have, or at the least should have had, knowledge of the PETPLAN mark when it registered the disputed domain name in 2013. The Complainant further says that the Respondent is using the disputed domain name to redirect Internet users to a website featuring links to third-party websites and for which the Respondent presumably receives pay-per-click fees which amounts to use in bad faith. It further submits that the Respondent’s failure to respond to its three cease and desist letters in 2015 is indicative of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has demonstrated that it owns registered trade mark rights for its PETPLAN mark as set out above. These registrations are for the term “petplan” written in a fancy stylized font. There is no other element to the registrations and therefore for the purposes of the analysis under the Policy, the Panel is satisfied that the dominant element of these registrations is the term “petplan”. The disputed domain name wholly incorporates the Complainant’s PETPLAN trade mark and only differs from it by inclusion of the commonly used prefix “medi”. The Panel finds that the inclusion of this prefix does not distinguish the disputed domain name from the Complainant’s PETPLAN trade mark and that the disputed domain name is confusingly similar to the Complainant’s trade mark. As a consequence the Complaint succeeds under the first element of the Policy. B. Rights or Legitimate Interests The Complainant has submitted that the Respondent is not sponsored by or affiliated with the Complainant in any way and that it has not given the Respondent permission to use the Complainant’s trade marks. The Complainant has also submitted that the Respondent is not commonly known by the disputed domain name. It further says that, for the reasons outlined under Part C below, the Respondent must have or should have known about the Complainant’s business and been aware of the PETPLAN mark at the date of registration of the disputed domain name. The Complainant says that the Respondent’s registration in these circumstances is not consistent with bona fide conduct. In addition it says that the disputed domain name merely resolves to a parking page featuring “pay per click” links and is not otherwise used by the Respondent. The Panel finds that the Complainant has made out a prima facie case under this element of the Policy and in the absence of a response there is nothing in the record to rebut the Complainant’s case. As a result, and also for the reasons set out under Part C below, the Panel infers that the Respondent has no rights or legitimate interests in the disputed domain name and therefore finds that the Complaint succeeds under this element of the Policy. C. Registered and Used In Bad Faith At the date of registration of the disputed domain name the Complainant’s business and PETPLAN mark were very well established, in particular in the United Kingdom. The Complainant had by that time been operating its business under the PETPLAN mark for several decades and had a licensee and separate trade mark registration in the United States, operations in numerous other jurisdictions through licensees and a substantial Internet presence through its websites at “www.petplan.co.uk” and “www.petplan.com”. It also appears to enjoy a considerable degree of renown as a consequence of the various awards received for its products. In these circumstances the Panel infers that the New York based Respondent was most likely aware of the Complainant’s business and mark when it registered the disputed domain name. The evidence before the Panel suggests that a simple Internet search at that time would have pointed to various references to the Complainant’s business and to its PETPLAN mark and equally a simple search of the United States trade mark register would also have revealed the Complainant’s United States trade mark registration. As a result the Panel infers that the Respondent registered the disputed domain name in bad faith. There is no evidence to suggest that the Respondent has itself made a bona fide use of the disputed domain name since registration. The only use that appears to have been made is to resolve to a parking page that features pay per click links in respect of which it appears that the Respondent earns income. The Complainant has sent three cease and desist letters to the Respondent but has received no reply and in the absence of any Response there is nothing before the Panel to explain the Respondent’s position. The Panel therefore infers, in terms of paragraph 4(b)(iv) of the Policy, that the Respondent has intentionally used the disputed domain name to attempt to attract Internet users for commercial gain to the pay per click landing page at the disputed domain name by creating confusion with the Complainant’s mark, which is evidence of both registration and use in bad faith under the Policy. As a result the Panel finds that the Respondent has both registered and used the disputed domain name in bad faith and the Complaint succeeds under the third element 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 <medipetplan.com> be transferred to the Complainant. Alistair Payne Sole Panelist Date: February 21, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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