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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Pet Plan Ltd v. Jennie Moore / Domain Privacy Service FBO Registrant

Case No. D2015-1698

1. The Parties

The Complainant is Pet Plan Ltd of Guildford, Surrey, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by CSC Digital Brand Services AB, Sweden.

The Respondent is Jennie Moore of Hanies, Florida, United States of America (“United States”) / Domain Privacy Service FBO Registrant of Burlington, Massachusetts, United States.

2. The Domain Name and Registrar

The disputed domain name <preferredpetplan.com> (the “Disputed Domain Name”) is registered with Domain.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2015. On September 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 28, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 30, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 30, 2015.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 14, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 3, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 4, 2015.

The Center appointed John Swinson as the sole panelist in this matter on November 11, 2015. 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 Complainant is Pet Plan Ltd of the United Kingdom. The Complainant provides pet insurance for both domestic and exotic pets in the United Kingdom and around the world through various licensees. The Complainant was founded in 1976, and is now a subsidiary of Allianz Insurance plc, one of the largest general insurers in the United Kingdom. The Complainant has won a number of awards for its services.

The Complainant owns registered trade marks for PETPLAN or PET PLAN in various jurisdictions, the earliest of which was registered on January 19, 1996 (the “Trade Mark”). The Complainant has operated and provided insurance services under the Trade Mark for over 15 years.

The Complainant also owns two domain names which incorporate the Trade Mark, being <petplan.co.uk> and <petplan.com>.

The Respondent is Jennie Moore, an individual of the United States (who registered the Disputed Domain Name via a privacy service, with the registrant being Domain Privacy Service FBO Registrant). The Respondent did not provide a response to the Complaint, so the Panel has little further information about the Respondent.

The Respondent registered the Disputed Domain Name on May 12, 2015. The website at the Disputed Domain Name is a holding page featuring pay-per-click (“PPC”) links.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions.

Identical or Confusingly Similar

The relevant trade mark registrations establish that the Complainant is the owner of the Trade Mark. The relevant comparison of the Trade Mark is to the second-level portion of the Disputed Domain Name. The Respondent has added the generic, descriptive term “preferred” to the Trade Mark, which makes the Disputed Domain Name confusingly similar to the Trade Mark. This term is closely linked and associated with the Complainant and the Trade Mark, and closely relates to and describes the Complainant’s business, which serves to increase the confusing similarity.

Rights or Legitimate Interests

The Complainant has not sponsored and is not affiliated with the Respondent is any way. The Complainant has not given the Respondent permission to use the Trade Mark in any manner, including in the Disputed Domain Name.

The Respondent is not commonly known by the Disputed Domain Name. The WhoIs information for the Disputed Domain Name identifies the registrant as “Jennie Moore”. Where there is no evidence that suggests the Respondent is commonly known by the Disputed Domain Name, then the Respondent cannot be regarded as having acquired rights to or legitimate interests in the Disputed Domain Name.

The Respondent is using the Disputed Domain Name to redirect Internet users to a website featuring PPC links, some of which are to businesses which directly compete with the Complainant. Prior UDRP panels have found that respondents who monetize a domain name by using PPC links have not made a bona fide offering of goods or services that would give rise to rights or legitimate interests in a disputed domain name. As such, the Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services as allowed under paragraph 4(c)(i) of the Policy, nor a legitimate noncommercial or fair use as allowed under paragraph 4(c)(iii) of the Policy.

Registration and Use in Bad Faith

The Respondent registered the Disputed Domain Name on May 12, 2015, which is after the Complainant registered the Trade Mark. The Complainant has been in business for over 35 years and has sold its goods and services using the Trade Mark since 1997. It is very well-known.

The Respondent’s registration of a confusingly similar domain name demonstrates the Respondent’s knowledge of the Trade Mark. Further, the website at the Disputed Domain Name contains PPC links which directly reference the Complainant’s business of providing pet insurance plans. At the time the Respondent registered the Disputed Domain Name, the Respondent knew or should have known of the Trade Mark, and that registration of the Disputed Domain Name would constitute bad faith.

The Respondent has created a likelihood of confusion with the Complainant and the Trade Mark by registering a confusingly similar domain name. This demonstrates that the Respondent is using the Disputed Domain Name to mislead Internet users as to the source of the Disputed Domain Name and the associated website, and to capitalize on the fame and goodwill of the Trade Mark in order to increase Internet traffic to the website at the Disputed Domain Name for the Respondent’s pecuniary gain.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.

A. Procedural Issues

The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default.

B. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.

The Disputed Domain Name incorporates the Trade Mark in its entirety, and adds the generic term “preferred” as a prefix. This may give the impression that the operator of the website is the preferred or best provider of the services advertised at that website.

The Panel does not agree with the Complainant’s submission that the term “preferred” is “closely linked and associated with” the Complainant and the Trade Mark, or that it “closely relates to and describes the Complainant’s business”, because insufficient evidence was provided by the Complainant in this regard. However, the term “preferred” certainly does not act to distinguish the Disputed Domain Name from the Complainant or the Trade Mark.

The Disputed Domain Name is confusingly similar to the Trade Mark. The Complainant succeeds on the first element of the Policy.

C. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.

The Panel finds that the Complainant has made out a prima facie case. This finding is based upon the following:

- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website at the Disputed Domain Name is a holding page featuring PPC links. Some of these links relate specifically to pet insurance, and direct Internet users to the Complainant’s competitors. This is not a bona fide use of the Disputed Domain Name under the Policy.

- The Panel accepts the Complainant’s submission that the Complainant has not authorized or otherwise given the Respondent permission to use the Disputed Domain Name.

- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name.

- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. It is likely that the Respondent is profiting from the PPC advertising on the website at the Disputed Domain Name. In the absence of any evidence from the Respondent to the contrary, the Panel is of the view that this does not amount to a bona fide use for the purpose of the Policy.

The Respondent had the opportunity to demonstrate her rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy.

D. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.

The Complainant has been operating since 1976, and the Trade Mark was first registered in 1996. A present, the Trade Mark is registered in the United States, Canada, Australia, the United Kingdom, and the European Union (via a Community Trade Mark). The Complainant owns two registered domain names which incorporate the Trade Mark, has won a number of awards, and is part of one of the largest insurance providers in the world. The Complainant and the Trade Mark are clearly very well known in their field.

The Disputed Domain Name was registered on May 12, 2015, which is almost 40 years after the Complainant first began operating, and almost 20 years after the Trade Mark was first registered. In light of this, the Panel considers it likely that the Respondent had knowledge of both the Complainant and the Trade Mark at the time the Respondent registered the Disputed Domain Name, and as such, did so in bad faith.

In some circumstances, where the reputation of a complainant in a given mark is significant and the mark has strong similarities to the disputed domain name, the likelihood of confusion is such that bad faith may be inferred (see, e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909 and cases cited therein). Here, the Panel can reasonably infer that the Respondent sought to make use of the reputation of the Complainant and registered the Disputed Domain Name in bad faith.

This conclusion is reinforced by the content of the website at the Disputed Domain Name, being PPC links relating to pet insurance provided by the Complainant’s competitors. The Panel considers that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to her website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of her website or of a product or service on her website. This is an indicator of bad faith use under paragraph 4(b)(iv) of the Policy.

Under these circumstances, the use of a privacy service to register the Disputed Domain Name also supports a finding of bad faith (see e.g., The Uder Company Pty Ltd and Stay In Bed Milk & Bread Pty Ltd (trading as Aussie Farmers Direct) v. PrivacyProtect.org, Domain Admin, ID # 10760, WIPO Case No. D2012-0924 and cases cited therein).

In light of the above, and in the absence of a Response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on the third element of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <preferredpetplan.com> be transferred to the Complainant.

John Swinson
Sole Panelist
Date: November 21, 2015

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