A one person UDRP panel rejected the claim of SelectQuote Insurance Services on the domain name selectquotereview.com
Of course the complainant owns a trademark on the term SelectQuote but the domain which was used in a site critical of the insurance comparison site, was found to be fair and legitimate use of the domain.
Here are the relevant facts and findings:
“The Complainant is a company offering price comparisons of insurance quotes since 1985. Due to extensive promotion and advertisement the Complainant is America’s number one Term Life sales agency.
“Complainant owns the selectquote mark for which it has obtained federal trade mark registrations in the USA. It has a website at selectquote.com”
“As a result the Complainant owns the exclusive right to use selectquote.com in connection with its online insurance services.”
“The Disputed Domain Name is nearly identical and confusingly simlar to the Complainant’s marks. The Disputed Domain Name contains the Complainant’s entire mark plus a generic term “review” meaning that the casual observer is bound to mistake the Disputed Domain Name for a name connected with the Complainant.”
“Respondent has no rights or legitimate interests in the Disputed Domain Name. It is not commonly known by the Disputed Domain Name. It is not affiliated with the Complainant in any way and has no permission to use the Complainant’s mark.”
“Respondent registered the Disputed Domain Name in 2012 significantly after Complainant’s first use in commerce in 1985.”
“Respondent’s typosquatting is, in and of itself, evidence of bad faith. Respondent has caused the websites reachable by the Disputed Domain Name to display the Complainant’s mark spelt correctly, serving as further evidence of bad faith removing any doubt as to whether or not the spelling was intentionally designed to improperly capitalize on the Complainant’s mark.”
“The content attached to the Disputed Domain Name is not a free speech commentary but rather a bad faith website carefully designed and intended to hurt the Complainant’s business with defamatory comments.”
“The Respondent’s contentions can be summarized as follows:
“Select Quote Review has a plain English meaning- an evaluation of the company named Select Quote. It is commonly understood that a review should be independent to be useful. Therefore, the plain English meaning of the Disputed Domain Name actually implies a lack of association with the Complainant. Any reasonable visitor to the content at the Disputed Domain Name would discern that it is not associated with the Complainant.”
“The Complainant registered and began posting at the domain <selectquotereviews.com> after the Respondent started his blog at the Disputed Domain Name, so in the unlikely event that anyone confuses the two, it will most likely be as a result of the Complainant starting to use a very similar domain name.”
“Should the repeated criticism of the Complainant not be a strong enough clue that the web site is not associated with the Complainant, the Respondent has specifically run an article denying association. A new footer also denies association. The “about me” section, clearly associating the site with Tom Durham, has been present since the site’s inception. The new content simply serves to reinforce an already very obvious point.”
“The Disputed Domain Name was registered as a noncommercial criticism site. In any event no sensible member of the public could confuse the Respondent with the Complainant.”
“The Disputed Domain Name is not typosquatting. No one could accidently type “review” after “SelectQuote.”
“There has not been and will not be an offer to sell this name.”
“There is no bad faith or squatting behaviour. There is no attempt to prevent the Complainant from reflecting the mark in a domain name and no pattern of registrations. Respondent’s use is a nominative fair use. There is no trademark use. Respondent is using the Complainant’s mark simply to refer to the Complainant. The fonts and symbols used in relation to the Complainant’s mark are not useful. Respondent is not a competitor.”
The panel found:
Complainant has obtained a federal trademark registration in the USA for the SELECT QUOTE mark. It has a website at <selectquote.com>.
Respondent registered the Disputed Domain Name in 2012. It has been used to post content critical of the Complainant.
The Panel finds as a matter of fact from the evidence that the Disputed Domain Name is being used as a noncommercial criticism site.
Panel agrees with the Respondent that the addition of the term “review” implies a lack of association with the Complainant as a review is customarily written by someone unassociated with the subject being reviewed.
The exact name of the Complainant has not been used and the use of a term suggesting independence in the Disputed Domain Name may avoid confusion in fact between the criticism site and the Respondent. In any event the site is very obviously critical of the Complainant.
The content is such that confusion as to origin from the Complainant, if this were not dispelled by the Disputed Domain Name itself, will be very quickly dispelled. There is no evidence of commercial gain or any motive for use of the site except as a forum to criticize the Complainant. There is no hint in the evidence that the criticism site is an excuse to cover bad faith, such as registration of multiple domains of this sort.
The Panel finds that the Respondent has not violated any of the factors listed in the Policy 4(b), nor has he engaged in any content that would constitute bad faith registration and use pursuant to The Policy
first amendment biznitches
Thats disappointing. I disagree that this is first amendment protected, you cannot sit there and make unsubstaniated slanderous and libelous claims against a person or company. There is a fine line between simple commentary and intentional destructive speech. I actually went to the blog in question and I read through some of it and I have to question what is wrong with NAF these days? (http://www.thedomains.com/2009/09/25/porsche-loses-udrp-on-porscheexperience-com-porscheguides-com-even-after-the-owner-offers-to-sell-them/) It seems that NAF doesn’t favor trademark holders lately. The Tom guy claims to be an “insider” and he claims that selectquote has child assassins and naked home invaders with knives? The worst part is, its not in “fun”- he actually believes this crap. To me, that guy is dangerous and probably schizophrenic. I would encourage Selectquote to sue this guy in court, as NAF is just arbitration and not legally binding, just arbitrary opinion. My two cents.
The UDRP is not set up to settle claims based on liable or slander just whether the domain infringes on a Trademark.
If the Trademark holder feels that the site violated its legal rights and could enforce them in a court of law.
“Thats disappointing. I disagree that this is first amendment protected, you cannot sit there and make unsubstaniated slanderous and libelous claims against a person or company.”
And this has what to do with the UDRP?
Here’s the deal. If you and I both live in New York City, and you walk up to me on the street and slap me in the face, then what do you think will happen if I then proceed to sue you for patent infringement in Mexico?
A pretty good guess would be that the Mexican court would dismiss my patent infringement claim.
The UDRP is not there to figure out whether or not something is libelous. They are there to figure out whether someone is exploiting a trademark for unfair commercial gain.
So if you slap me in the face in New York, it would be a much better idea for me to sue you for battery in New York, instead of suing you for patent infringement in Mexico.
If you use the right tool for the job, then you spend less time trying to decide whether a screwdriver or a wrench is going to be the best choice for driving a nail.