Phoenixlifeinsurancecompany.com

The timeline behind phoenixlifeinsurancecompany.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Phoenix Life Insurance Company v. Belize Domain WHOIS Service Lt Claim Number: FA0710001088044 PARTIES Complainant is Phoenix Life Insurance Company (“Complainant”), represented by Eric J. Shimanoff, of Cowan, Liebowitz & Latman, P.C., 1133 Avenue of the Americas, New York, NY 10036-6799. Respondent is Belize Domain WHOIS Service Lt (“Respondent”), Suite 5, Garden City Plaza, Mountainview Boulevard, City of Belmopan, Belize. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <phoenixlifeinsurancecompany.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com. PANEL The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding. Tyrus R. Atkinson, Jr., as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on October 3, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 4, 2007. On October 3, 2007, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <phoenixlifeinsurancecompany.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 October 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 25, 2007 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@phoenixlifeinsurancecompany.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On October 30, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <phoenixlifeinsurancecompany.com> domain name is confusingly similar to Complainant’s PHOENIX mark. 2. Respondent does not have any rights or legitimate interests in the <phoenixlifeinsurancecompany.com> domain name. 3. Respondent registered and used the <phoenixlifeinsurancecompany.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Phoenix Life Insurance Company, has been operating under the PHOENIX mark for over 150 years offering insurance, financial and investment services. Complainant owns various registrations of the PHOENIX mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,399,281 issued October 31, 2000). Respondent’s <phoenixlifeinsurancecompany.com> domain name was registered on November 8, 2005 and currently resolves to a website that contains links to third-parties that provide services which compete with those services offered under Complainant’s mark. Respondent has also had numerous other domain names transferred from it by similarly situated panels. See C.R. Bard, Inc. & BCR Inc. v. Belize Domain WHOIS Services Lt., FA 979990 (Nat. Arb. Forum June 18, 2007); see also Carnival Plc v. Belize Domain WHOIS Services Lt., FA 997973 (Nat. Arb. Forum July 17, 2007); see also Brookdale Senior Living v. Belize Domain WHOIS Services Lt., FA 1011906 (Nat. Arb. Forum Aug. 6, 2007); see also Ecolab Inc. v. Belize Domain WHOIS Services Lt., FA 1053330 (Nat. Arb. Forum Sept. 19, 2007). DISCUSSION 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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”). 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. Identical and/or Confusingly Similar Complainant has sufficiently established rights in the PHOENIX mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”). Respondent’s <phoenixlifeinsurancecompany.com> domain name contains Complainant’s PHOENIX mark in its entirety. It then includes the generic top-level domain (“gTLD”) “.com” and the descriptive terms “life,” “insurance” and “company,” all of which not only describe the services offered under Complainant’s mark, but are together Complainant’s corporate name. It is well-established that neither gTLDs nor generic descriptive terms distinguish a domain name from a Complainant’s mark. As such, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent has no rights or legitimate interests in the <phoenixlifeinsurancecompany.com> domain name. See VeriSign Inc. v. VeneSign C.A., D2000-0303 (WIPO June 28, 2000) (“Respondent's default, however, does not lead to an automatic ruling for Complainant. Complainant still must establish a prima facie case showing that under the Uniform Domain Name Dispute Resolution Policy it is entitled to a transfer of the domain name.”). The Panel finds that Complainant has established a prima facie case and the burden is thus shifted to Respondent to demonstrate that it does have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). Respondent has failed to submit a response to the Complaint. As a result, the Panel presumes that Respondent has no rights or legitimate interests in the <phoenixlifeinsurancecompany.com> domain name but will still consider under Policy ¶ 4(c) all of the available evidence. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). Nowhere in Respondent’s WHOIS information or elsewhere in the record does it indicate that Respondent is or ever was commonly known by the <phoenixlifeinsurancecompany.com> domain name. Moreover, Complainant contends that it has not granted Respondent permission to use its PHOENIX mark in any way. Therefore, absent any affirmative evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee 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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). Respondent’s <phoenixlifeinsurancecompany.com> domain name contains Complainant’s mark in its entirety and resolves to a website featuring various links to third-parties, many of which offer services in competition with those offered under Complainant’s PHOENIX mark. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Respondent’s <phoenixlifeinsurancecompany.com> domain name resolves to a website that provides links to various commercial third-parties, many of which offer services in competition to those offered under Complainant’s mark. The Panel finds this to establish that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). Moreover, Respondent is presumed to be benefiting through the use of click-through fees from these hyperlinks to third-party competitors of Complainant. The Panel finds that the disputed domain name is capable of creating a likelihood of confusion with Complainant’s mark and this is thus further evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). Lastly, Respondent has been the subject of numerous previous domain name disputes before similarly situated panels that have transferred Respondent’s domain names. See C.R. Bard, Inc. & BCR Inc. v. Belize Domain WHOIS Services Lt., FA 979990 (Nat. Arb. Forum June 18, 2007); see also Carnival Plc v. Belize Domain WHOIS Services Lt., FA 997973 (Nat. Arb. Forum July 17, 2007); see also Brookdale Senior Living v. Belize Domain WHOIS Services Lt., FA 1011906 (Nat. Arb. Forum Aug. 6, 2007); see also Ecolab Inc. v. Belize Domain WHOIS Services Lt., FA 1053330 (Nat. Arb. Forum Sept. 19, 2007). The Panel finds this to establish a pattern of cybersquatting and thus additional evidence of Respondent’s bad faith registration and use of the <phoenixlifeinsurancecompany.com> domain name pursuant to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting). The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii). DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <phoenixlifeinsurancecompany.com> domain name be TRANSFERRED from Respondent to Complainant. Tyrus R. Atkinson, Jr., Panelist Dated: November 13, 2007 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.