Westernreservelife.com

The timeline behind westernreservelife.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 Western Reserve Life Assurance Company of Ohio v. Jet Stream Enterprises Limited c/o Jet Stream Claim Number: FA0912001297718 PARTIES Complainant is Western Reserve Life Assurance Company of Ohio (“Complainant”), represented by Bruce A. McDonald, of Schnader Harrison Segal & Lewis LLP, Washington, D.C., USA. Respondent is Jet Stream Enterprises Limited c/o Jet Stream (“Respondent”). REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <westernreservelife.com>, registered with Enom, Inc. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Louis E. Condon as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 8, 2009. On December 7, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <westernreservelife.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 December 18, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 7, 2010 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@westernreservelife.com by e-mail. Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On January 20, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <westernreservelife.com> domain name is identical to Complainant’s WESTERN RESERVE LIFE mark. 2. Respondent does not have any rights or legitimate interests in the <westernreservelife.com> domain name. 3. Respondent registered and used the <westernreservelife.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Western Reserve Life Assurance Company of Ohio, is a provider of life insurance, investment, and retirement services. Complainant has used the WESTERN RESERVE LIFE mark since 1961. Complainant holds a registration of the WESTERN RESERVE LIFE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,572,364 issued December 19, 1989). Respondent, Jet Stream Enterprises Limited c/o Jet Stream, registered the <westernreservelife.com> domain name on May 19, 2002. The disputed domain name resolves to a website that displays hyperlinks to third-party websites, some of which directly compete with Complainant. Respondent has been the respondent of several UDRP proceedings resulting in the transfer of disputed domain names. See e.g., The Knot, Inc. v. Jet Stream Enterprises Limited, FA 1288037 (Nat. Arb. Forum Nov. 18, 2009); see also Mary Kay Inc. v. Jet Stream Enterprises Limited, FA 1286672 (Nat. Arb. Forum Nov. 12, 2009); see also Barry’s Ticket Service, Inc. v. Jet Stream Enterprises Limited, FA 1270845 (Nat. Arb. Forum Aug. 5, 2009). 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 provided evidence of a registration of the WESTERN RESERVE LIFE mark with the USPTO (Reg. No. 1,572,364 issued December 19, 1989). The Panel finds that this evidence is sufficient for Complainant to establish rights in the WESTERN RESERVE LIFE mark under Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”). Respondent’s <westernreservelife.com> domain name contains Complainant’s entire WESTERN RESERVE LIFE mark, deletes the spaces within the mark, and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds, as previous panels have, that none of these alterations to Complainant’s mark sufficiently distinguishes the disputed domain name from Complainant’s mark. See Diesel v. LMN, FA 804924 (Nat. Arb. Forum Nov. 7, 2006) (finding <vindiesel.com> to be identical to complainant’s mark because “simply eliminat[ing] the space between terms and add[ing] the generic top-level domain (“gTLD”) ‘.com’ … [is] insufficient to differentiate the disputed domain name from Complainant’s VIN DIESEL mark under Policy ¶ 4(a)(i)”); see also Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel also finds that Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that the <westernreservelife.com> domain name is identical to Complainant’s WESTERN RESERVE LIFE mark under Policy ¶ 4(a)(i). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Upon making such a showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii). The burden now shifts to Respondent, from whom no response was received. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also 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. 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).”). Although Respondent has not made any allegations that it has rights or legitimate interests in the disputed domain name, the Panel elects to examine the record under Policy ¶ 4(c). The WHOIS information for the <westernreservelife.com> domain name lists “Jet Stream Enterprises Limited c/o Jet Stream” as the registrant, which does not indicate that Respondent is commonly known by the <westernreservelife.com> domain name. Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Moreover, Complainant asserts that it has not licensed or otherwise authorized Respondent to use the WESTERN RESERVE LIFE mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Respondent’s <westernreservelife.com> domain name resolves to website that displays hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel presumes that Respondent receives click-through fees from these hyperlinks. Therefore, the Panel finds that Respondent’s use of the disputed domain name is not 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 ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent has been the respondent of several UDRP proceedings resulting in the transfer of disputed domain names. See e.g., The Knot, Inc. v. Jet Stream Enterprises Limited, FA 1288037 (Nat. Arb. Forum Nov. 18, 2009); see also Mary Kay Inc. v. Jet Stream Enterprises Limited, FA 1286672 (Nat. Arb. Forum Nov. 12, 2009); see also Barry’s Ticket Service, Inc. v. Jet Stream Enterprises Limited, FA 1270845 (Nat. Arb. Forum Aug. 5, 2009). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii) with respect to the <westernreservelife.com> domain name. See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Sony Kabushiki Kaisha v. Anderson, FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a pattern of registering domain names in bad faith pursuant to Policy ¶ 4(b)(ii) when the respondent previously registered domain names incorporating well-known third party trademarks). Since Respondent registered the <westernreservelife.com> domain name on May 19, 2002, the disputed domain name has resolved to a website that features hyperlinks to third-party websites, some of which directly compete with Complainant. The Panel finds that Respondent’s use of the <westernreservelife.com> domain name disrupts Complainant’s business. The Panel further finds that such a disruption constitutes bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)). The Panel finds that Respondent’s use of the identical <westernreservelife.com> domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name. The Panel further finds that Respondent is commercially gaining from this likelihood of confusion through Respondent’s presumed receipt of click-through fees from the hyperlinks displayed on the website resolving from the disputed domain name, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shoud be GRANTED. Accordingly, it is Ordered that the <westernreservelife.com> domain name be TRANSFERRED from Respondent to Complainant. Louis E. Condon, Panelist Dated: February 3, 2010 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.