DECISION

Aetna Inc. v. Andreas Meier d/b/a toptarget.com BV

Claim Number:  FA0305000159414

PARTIES

Complainant is Aetna Inc., Hartford, CT, USA (“Complainant”) represented by Faye A. Dion of Aetna Inc.  Respondent is Andreas Meier d/b/a toptarget.com BV, Amsterdam, NETHERLANDS (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <aetnaaz.com>, registered with Enom, Inc.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on May 27, 2003; the Forum received a hard copy of the Complaint on May 29, 2003.

On May 28, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <aetnaaz.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. 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 June 2, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 23, 2003, 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@aetnaaz.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On June 26, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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 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. The domain name registered by Respondent, <aetnaaz.com>, is confusingly similar to Complainant’s AETNA mark.

2. Respondent has no rights or legitimate interests in the <aetnaaz.com> domain name.

3. Respondent registered and used the <aetnaaz.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Since 1853, Complainant, Aetna Inc., has continuously used the AETNA mark in connection with a wide variety of insurance and financial and health care services.  Complainant, directly or through a wholly owned subsidiary, currently owns many U.S. federal trademarks that are registered with the U. S. Patent and Trademark Office (“USPTO”) for the AETNA mark, including Reg. Nos. 1,939,423 (registered December 5, 1995) and 1,744,804 (registered January 5 1993).  Complainant’s USPTO registrations date back to 1923.  Complainant also has applied and/or obtained trademark registrations in thirty-four other countries and/or regions, including the Netherlands, where Respondent is domiciled.

Complainant, directly or through a wholly owned subsidiary, owns many domain name registrations that correspond with its famous marks, including <aetna.com> (registered Oct. 16, 2002) and <aetna.net> (registered Oct. 8, 2002).  Complainant’s websites inform the public as well as Complainant’s present and potential customers of the services it offers under the AETNA mark. 

Respondent registered the <aetnaaz.com> domain name October 3, 2002.  Respondent is using the disputed domain name to redirect Internet traffic to an adult oriented website.

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 will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.

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 to and/or Confusingly Similar

Complainant established in this proceeding that it has rights in the AETNA mark through registration of the mark with the USPTO and by continuous use of the mark in commerce since 1923. 

The domain name registered by Respondent, <aetnaaz.com>, is confusingly similar to Complainant’s mark because the disputed domain name appropriates Complainant’s entire mark and merely adds the letters “az” to the mark.  See Aetna Inc. v. Dotsan a/k/a R.S. Potdar, FA 114457 (Nat. Arb. Forum July 25, 2002) (finding that the addition of an undecipherable combination of letters in the domain names <aetnaus.com>, <aetnaush.com>, <aetnaushe.com> and <aetnashc.com> fails to detract from the overall impression of the dominant part of the name, namely, the trademark AETNA); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding, that by misspelling words or adding letters to words, Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the Complainant’s marks).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights to or Legitimate Interests

Complainant urges that Respondent has no rights to or legitimate interests in the disputed domain name.  Respondent did not provide the Panel with a Response in this proceeding.  Thus, the Panel may accept all reasonable allegations and inferences in the Complaint as true.  See Bayerische Motoren Werke AG v Bavarian AG, FA 110830 (Nat. Arb. Forum June 17, 2002) (finding that in the absence of a Response the Panel is free to make inferences from the very failure to respond and assign greater weight to certain circumstances than it might otherwise do); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that complainant’s allegations are true unless clearly contradicted by the evidence).

Moreover, due to Respondent’s failure to dispute the allegations in the Complaint, the Panel may presume that Respondent lacks any rights to or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

Respondent is using the <aetnaaz.com> domain name to redirect Internet traffic to an adult oriented website.  This use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See MatchNet plc v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material where such use is calculated to mislead consumers and tarnish the Complainant’s mark); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that infringing on another's well-known mark to provide a link to a pornographic site is not a legitimate or fair use).

Respondent is not affiliated with Complainant and the evidence fails to establish that the Respondent is authorized or licensed to register or use domain names or marks containing the AETNA mark.  The WHOIS for the <aetnaaz.com> domain name reports that Respondent, Andreas Meier d/b/a toptarget.com BV, is the registrant; however, this fails to establish that Respondent is an “individual, business, or other organazation” commonly known by the <aetnaaz.com> domain name.  Therefore, Respondent has no rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(ii).  See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name); see also MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name does not even correctly spell a cognizable phrase” in finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established.

Registration and Use in Bad Faith

Respondent registered the domain name <aetnaaz.com> and linked it to an adult oriented website.  The use of a domain name confusingly similar to a registered mark to divert Internet traffic to a website with sexually explicit content is itself evidence of bad faith pursuant to Policy ¶ 4(a)(iii).  See Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his website for commercial gain and linked his website to pornographic websites); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).

The Panel finds that Policy ¶ 4(a)(iii) has been established.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <aetnaaz.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: July 9, 2003.

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