WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie D'assurances Belair Inc. v. Merab
Case No. D2011-0562
1. The Parties
Complainant is Compagnie D'assurances Belair Inc. of Toronto, Ontario, Canada, represented by Smart & Biggar, Canada.
Respondent is Merab of Tbilisi, Republic of Georgia.
2. The Domain Name and Registrar
The disputed domain name <belairdirect.org> (“the Domain Name”) is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2011. On March 29, 2011, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the Domain Name. On March 29, 2011, Tucows Inc. transmitted by email to the Center its verification response confirming that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 1, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 21, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 26, 2011.
The Center appointed Clive L. Elliott as the sole panelist in this matter on May 6, 2011. 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 Domain Name was registered on February 8, 2009.
5. Parties’ Contentions
Complainant states that it has been in business for over 50 years, offering insurance services to consumers in association with the trademark and trade name BELAIR. Complainant asserts that from 1996 it has been providing complete car and home insurance solutions direct to the consumer in association with the trademark BELAIR DIRECT and in 1997, it became the first car insurance company in North America to offer an online car insurance quote directly to consumers. Complainant asserts that it has spent substantial time, effort and money advertising and promoting the trademark BELAIR DIRECT throughout Canada and as a result contends that it has developed a significant amount of goodwill in the trademark BELAIR DIRECT.
Complainant states that as well as being the owner of the several registered trademarks in Canada, including BELAIR DIRECT, BELAIR DIRECT & Design and BELAIR DIRECT.COM & Design, it is also the owner of a large number of domain names which include the word “belair” and “belair direct”, including <belairdirectautoinsurance.com>, <belairdirectautoinsurance.org>, <belairdirectinsurancecompany.com>, and <belairdirectinsurancecompany.org>.
Complainant states it has established websites including “www.belairdirect.com” and “www.belairdirect.ca”, which websites allow Internet users throughout Canada to access information regarding Complainant and its insurance products, and to obtain insurance quotations for car and home insurance.
Complainant submits that the Domain Name is identical to its trademark BELAIR DIRECT, with the addition of the suffix “.org”. Complainant contends that Respondent uses the Domain Name in association with a website directly competitive with that of Complainant and by referring to itself as “BELAIR DIRECT”, Respondent’s website solicits consumers to seek out home and auto insurance quotes, which appear unavailable directly on the site. Complainant submits that this may lead consumers to believe that its own website is not operational.
Complainant asserts that Respondent’s website cites:
“Belair Direct is mainly focused on providing Auto Insurance quotes and Home Insurance quotes for insurance shoppers in Canada, especially in Toronto and Quebec. Plus you can get quotes from top insurance companies on Renters Insurance, Health Insurance, Life Insurance and Motorcycle Insurance. Here you can easily receive quotes from top rated Canadian insurance companies.”
Complainant also contends that despite being based in Tbilisi, Georgia, Respondent’s website includes a contact address in Toronto, Ontario, Canada, a city where Complainant does business, and Complainant submits that the accuracy of the Georgia address information is questionable.
Complainant submits that that the Domain Name is therefore confusingly similar to its trademark BELAIR DIRECT in which it had rights prior to the registration of the Domain Name and is likely to cause confusion among its customers.
Complainant asserts that Respondent has no rights or legitimate interests in respect of the Domain Name and states that Respondent was first given notice of the dispute on February 16, 2010 when a cease and desist letter was forwarded to it. When no response was received from this first letter, a follow-up cease and desist letter was also forwarded to Respondent on March 2, 2010. Complainant states that on March 4, 2010 Respondent replied by stating: “If you want to buy the domain, I can sell it to you”, and on September 28, 2010, Complainant offered Respondent USD 300 for the Domain Name. Complainant advises that no response was received to this offer.
Complainant asserts that there is no evidence of Respondent’s use of, or demonstrable preparations to use, the Domain Name or names corresponding to the Domain Names in connection with a bona fide offering of goods or services. Complainant also asserts that Respondent uses the Domain Name in association with a website which is directly competitive with that of Complainant, using the identical trademark BELAIR DIRECT and that Respondent’s website includes pay-per-click advertisements which lead consumers to third party websites offering insurance quotes competitive with that of Complainant such as “www.brokerlink.ca”.
Complainant argues that Respondent is using the Domain Name website to attract potential customers of Complainant under the guise of receiving a quote and/or services offered by Complainant, and then diverts these users to a website not affiliated with Complainant or Complainant's products and services. Such use, Complainant submits, cannot possibly constitute the offering of “authentic” services as BELAIR DIRECT is a registered trademark owned by Complainant and therefore, there is no bona fide offering of goods or services.
Complainant further contends that Respondent is not making legitimate noncommercial or fair use of the Domain Name, but is making illegitimate commercial use of the Domain Name with a website that is a direct infringement of Complainant’s registered trademark rights.
Complainant contends that Respondent’s Domain Name is directly competitive with that of Complainant, and it prominently features in bold characters the identical trademark BELAIR DIRECT. Furthermore, the links on Respondent's website to websites promoting insurance products and services not affiliated with Complainant, Complainant contends demonstrates that Respondent intentionally attempted to attract users for commercial gain by creating a likelihood of confusion with Complainant's BELAIR DIRECT trademark as to source, sponsorship and affiliation of the website, together with diverting actual insurance sales away from Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Domain Name is identical and confusingly similar to Complainant’s trademark and trade name BELAIR and its trademark BELAIR DIRECT (“Complainant’s Trademark”). The Domain Name incorporates BELAIR DIRECT in its entirety and suggests a clear connection or association with Complainant, but contrary to the fact. By adopting a domain name that wholly incorporates Complainant’s Trademark and which conveys the same overall impression as Complainant’s Trademark, Respondent has used a term confusingly similar to Complainant’s trademark.
Accordingly, this element is made out by Complainant.
B. Rights or Legitimate Interests
Respondent is plainly using the Domain Name for commercial purposes. Specifically, Complainant contends, without challenge, that Respondent is using the Domain Name in relation to pay-per-click advertisements. These are alleged to lead consumers to third party websites offering insurance quotes competitive with that of Complainant.
It is well established that rights or legitimate interests cannot be created where the user of the domain name at issue would not choose such a name, unless it was seeking to create a mistaken impression of identification or association with the particular complainant. The Panel is of the clear view that such a mistaken impression or identification with Complainant is likely to arise in this present case and that on this basis Complainant again makes out this element.
C. Registered and Used in Bad Faith
Given the nature and extent of Complainant’s prior use and registration of Complainant’s Trademark, it is found that Respondent registered the Domain Name in bad faith, with knowledge (actual or imputed) that using in its entirety Complainant’s Trademark as part of the Domain Name would likely cause an Internet user visiting Respondent’s web site, if any, (or through other means, including its alleged click-through affiliates) to incorrectly assume that the Domain Name is somehow sponsored by or affiliated with Complainant.
The scenario identified in the paragraph immediately above is all too common today and Respondent’s failure to answer any of these allegations or provide any form of explanation supports the conclusion that the Domain Name was registered and is being used in bad faith and that Complainant is therefore entitled to relief pursuant to the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <belairdirect.org> be transferred to Complainant.
Clive L. Elliott
Dated: May 23, 2011