DECISION

Massachusetts Mutual Life Insurance Company v. Albert Jackson

Claim Number:  FA0307000170518

PARTIES

Complainant is Massachusetts Mutual Life Insurance Company, Springfield, MA (“Complainant”) represented by Merton E. Thompson of Fish & Richardson P.C.  Respondent is Albert Jackson, George Town, Grand Cayman, Caymen Islands, British West Indies (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwmassmutual.com>, registered with Iholdings.com, Inc. d/b/a Dotregistrar.com.

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 July 18, 2003; the Forum received a hard copy of the Complaint on July 23, 2003.

On July 29, 2003, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <wwwmassmutual.com> is registered with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of the name. Iholdings.com, Inc. d/b/a Dotregistrar.com verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.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 August 4, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 25, 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@wwwmassmutual.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 September 3, 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 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 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, <wwwmassmutual.com>, is confusingly similar to Complainant’s MASS MUTUAL mark.

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

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

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

FINDINGS

Complainant, Massachusetts Mutual Life Insurance Company (“MassMutual”), holds United States Patent and Trademark Registration No. 990,411 (registered on August 6, 1974) and Registration No. 1,615,151 (registered on September 25, 1990) for the MASS MUTUAL mark.

Complainant is a global financial services organization with more than 1200 offices and 10 million clients worldwide.  Complainant uses the MASS MUTUAL mark both as its official company logo and in association with a wide range of financial services, including retirement insurance and investment services.  Complainant also uses the MASS MUTUAL mark in the <massmutual.com> domain name that hosts a website, which lists Complainant’s products and services.

Respondent registered the <wwwmassmutual.com> domain name on May 25, 2003.  Respondent is using the <wwwmassmutual.com> domain name to direct Internet users to a generic portal page with links to a variety of gambling and shopping websites.  The website located at the <wwwmassmutual.com> domain name also offers targeted financial service advertisements and pop-up advertisements for financial services that are unrelated to Complainant. 

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.

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 has established in this proceeding that it has rights in the MASS MUTUAL mark through registration of the mark with the United States Patent and Trademark Office.  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

Respondent’s <wwwmassmutual.com> domain name is confusingly similar to Complainant’s MASS MUTUAL mark.  Respondent is using a typographical error that is common among Internet users where they omit the “dot” between “www” and “MASS MUTUAL” in the disputed domain name.  The lack of a period between the “www” and Complainant’s mark is insufficient to distinguish the <wwwmassmutual.com> domain name from Complainant’s MASS MUTUAL mark.   Accordingly, the Panel concludes that the disputed domain name is confusingly similar to Complainant’s mark.  See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark).

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

Rights to or Legitimate Interests

Complainant has show that it has rights to and legitimate interests in the mark contained within the domain name that Respondent registered.  In this proceeding, Respondent has not submitted a Response to the Panel and thus has failed to set forth any circumstances under which it could have rights or legitimate interests in the <wwwmassmutual.com> domain name.  In addition, the Panel accepts as true all allegations submitted in the Complaint.  See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that where Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent fails to invoke any circumstance that demonstrates any rights or legitimate interests in the domain name); see also Bayerische Motoren Werke AG v. Bavarian AG, FA110830 (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 to assign greater weight to certain circumstances than it might otherwise do).

No evidence before the Panel indicates that Respondent is commonly known, either as an individual, business or other organization, by the <wwwmassmutual.com> domain name.  See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent”).

Respondent is using the <wwwmassmutual.com> domain name to direct Internet users to a portal site offering links to gambling and shopping websites.  The website located at the <wwwmassmutual.com> domain name also subjects Internet users to numerous targeted and pop-up advertisements offering competing services that are unaffiliated with Complainant.  The Panel infers that Respondent is earning income by directing Internet users to the portal website and will earn a bonus if an Internet user clicks on the links or advertisements.  Thus, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Pioneer Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that Respondent did not have rights or legitimate interests in a domain name that used Complainant’s mark and redirected Internet users to a website that pays domain name registrants for referring those users to its search engine and pop-up advertisements); see also RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (finding that Respondent has no rights or legitimate interests in the <wwwremax.com> domain name as it is merely using Complainant’s mark to earn profit from pop-up advertisements); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where Respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine web page, and failed to respond to the Complaint).

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

Registration and Use in Bad Faith

Complainant urges that Respondent registered and used the domain name in bad faith.  Respondent is trying to attract Internet users to the <wwwmassmutual.com> domain name by using Complainant’s entire mark in the disputed domain name.  When Internet users do not insert the period between the “www” and Complainant’s MASS MUTUAL mark, they are linked to a website completely unrelated to Complainant.  Respondent is creating a likelihood of confusion with Complainant’s mark as to the sponsorship or affiliation of the <wwwmassmutual.com> domain name and the Panel reasonably infers that Respondent is commercially benefiting from its unauthorized use of Complainant’s mark.  Thus, the Panel finds that Respondent is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).  See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain). 

Typosquatting occurs when registrants intentionally register misspelled versions of another’s mark in order to attract Internet users who make typographical errors.  Thus, when Respondent registered the <wwwmassmutual.com> domain name and diverted Internet users who omit the period between the “www” and Complainant’s MASS MUTUAL mark Respondent is engaging in typosquatting.  Since typosquatting itself is evidence of bad faith, the Panel concludes that Respondent registered and used the <wwwmassmutual.com> domain name in bad faith.  See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors.  Typosquatting is inherently parasitic and of itself evidence of bad faith”); see also Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that “[t]he absence of a dot between the “www”  and “canadiantire.com” [in the <wwwcanadiantire.com> domain name is] likely to confuse Internet users, encourage them to access Respondent’s site” and evidenced bad faith registration and use of the domain name); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the “www” portion of [a] web-address,” evidence that the domain name was registered and used in bad faith).   

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

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 <wwwmassmutual.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Carolyn Marks Johnson, Panelist

Dated: September 16, 2003.

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