SelectQuote Insurance Services ) 595 Market Street ) San Francisco, CA 94105 ) (Complainant) ) ) v.

) ) Thomas Dunham ) 152A Langton Street ) San Francisco, CA 94105 ) (Respondent) ) )

Domain Names In Dispute: selectquotereview.com Case Number: FA1207001454896

RESPONSE [1.] Respondent received a Written Notice of Complaint and Commencement of Administrative Proceeding on August 13th, 2012. The Notification stated that Complainant had submitted a Complaint for decision in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 and approved by ICANN on October 24, 1999 (UDRP or Policy), and the Rules for Uniform Domain Name Dispute Resolution Policy (Rules), effective March 1, 2010, and the National Arbitration Forum (FORUM) Supplemental Rules (Supp. Rules), effective July 1, 2010. Rule 4. [2.] RESPONDENT INFORMATION [a.] [b.] [c.] [d.] [e.] Name: Address: Telephone: Fax: E-Mail: Thomas Dunham 152A Langton Street San Francisco, CA 94103 415 852-1740 sqextort@gmail.com

[3.] RESPONDENT AUTHORIZED REPRESENTATIVE, IF ANY [a.] Name: none

UDRPlResponse

UDRP Rule 5(b)(ii). Respondents preferred contact person for correspondence relating to this case: [a.] [b.] Rule 5(b)(iii). Contact Name(s): Thomas Dunham Contact Emails(s): sqextort@gmail.com

[In this section, you may respond to any allegations made by Complainant regarding Forum Supplemental Rule 1(d).] The Respondent chooses to have this dispute heard before a (check one): __X___ single-member administrative panel; ____ three-member administrative panel]. Rule 5(b)(iv). [3.] RESPONSE TO FACTUAL AND LEGAL ALLEGATIONS MADE IN COMPLAINT This Response specifically responds to the statements and allegations contained in the Complaint and includes any and all bases for the Respondent to retain registration and use of the disputed domain name. Rule 5(b)(i). [The analysis in this section may require more space than provided, but the entire Complaint shall not exceed fifteen (15) pages. FORUM Supp. Rule 5(a).] [Elements of the UDRP are as follows:] [a.] [Specify in the space below the manner in which the domain name(s) is not/are not identical or confusingly similar to a trademark or service mark in which the Complainant has rights.] Rule 3(b)(ix)(1); UDRP 4(a)(i).

SelectQuote Review has a plain English meaning, an evaluation of the company named SelectQuote. This is exactly what my domain provides. The first two precedents Complainant cites are disingenuous. In Am. Int'l Group, Inc. v. Domain Admin. Ltd., FA1106369 (Nat. Arb. Forum Dec. 31, 2007) the domain americangenerallifeinsurance.com was found to be infringing, but American General sells life insurance! Of course this domain could be easily confused with americangeneral.com, the term is not merely generic, it is descriptive of American General's business. The generic term collection does nothing to distinguish from the mark Harry Potter. In contrast, a review is a commentary or evaluation a subject, and it is customary that a review is written by someone unassociated with the subject being reviewed. It is commonly understood that a review should have this independence to be useful. Therefore, the plain English meaning of the domain name actually implies a lack of association with SelectQuote. Any reasonable visitor to the domain selectquotereview.com would further discern from the content that the domain is not associated with the complainant. Also, the Complainant has actually taken actions to increase the confusion. Complainant registered and began posting at the domain selectquotereviews.com after Respondent started his blog at selectquotereview.com. Therefore, in the unlikely event that anyone confuses selectquotereview.com with selectquote.com, it is most likely as a result of SelectQuote starting

to use the very similar selectquotereviews.com. See Exhibit A which shows the initial domain registration as being April 4th 2012, which is after Respondent's registration of selectquotereview.com. Exhibit B is a screenshot of the domain, which is being used as a blog of reviews of SelectQuote. In this case, the reviews are selected by SelectQuote. Therefore, Complainant has not acted in a timely manner to protect their mark. Quite the opposite, by creating a similar site to Respondent's, at a domain that varies only by the addition of the letter 's', Complainant has taken action to dilute their own mark. Even if the Panel finds dilution did occur, it is due Complainant's own actions, not the Respondent's. The Aktiebolaget Electrolux Case No. D2011-2005 is not a good counter example. In that case, the Respondent simply had a domain full of paid, sponsored links. He did not write his own content. By contrast, the review of SelectQuote Insurance Services found at selectquotereview.com is clearly labeled as being from Tom Dunham. Also, no response was received in the Electrolux case, it is difficult to draw conclusions from an unargued case. Also, as the Complainant in that case resides in Sweden, it is unclear if the decision was based on U.S. Trademark law. In addition, the content of the domain makes it clear that the website is not associated with the Complainant. Should the repeated criticism of the Complainant not be a strong enough clue, Respondent has run an article specifically denying association Exhibit C. Exhibit C also shows the new footer, denying association. The About Me section, clearly associating the website with Tom Dunham, has been present since the site's inception. Certainly, Respondent maintains the content from Exhibit C was unnecessary for purpose of informing the public about a lack of association with the Complainant. Respondent included them on his website to point out the ludicrous nature of this complaint. However, since they are present in Respondent's website, they do serve to reinforce this already obvious point. [b] [Specify in the space below why the Respondent (domain-name holder) should be considered as having rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint.] Rule 3(b)(ix)(2); UDRP 4(a) (ii). [The Panel may consider any relevant aspects included in, but not limited to UDRP 4(c): (iii.) Whether Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.]

Selectquotereview.com was registered as a non-commercial criticism site. Fair use criticism is protected by the First Amendment to the U. S. Constitution. Even if the Panel decides trademark law trumps the First Amendment, Complainant must show that a sensible member of the public could possibly confuse Rspondent with Complainant. The Response to Glenn Beck's challenge to glennbeckrapedandmurderayounggrilin1990.com covers this ground quite well, and the complaint at hand fails for the same reasons: Xtraplus Corporation v. Flawless Computers WIPO Case No. D2007-0070 (zipzoomflysucks.com) points out that:

UDRP panels have in applicable cases repeatedly stated that a U.S.-based website engaged in noncommercial criticism of a U.S.-based trademark owners activities enjoys First Amendment protection, even if the domain name incorporates the complainants trademark. See, e.g., Benjamin Ladner v. Ben Wetmore, NAF File No. FA 0407000305190 (October13, 2004); Howard Jarvis Taxpayers Assoc. v. Paul McCauley, WIPO Case No. D2004-0014 (April 22, 2004); Action Instruments, Inc. v. Technology Assocs., WIPO Case No. D2003-0024 (March 6, 2003); The Am. Natl Red Cross v. Mafiabusters.com LLC, NAF File No. FA0206000114589 (August 6, 2002); Bosley Med. Group v. Kremer, WIPO Case No. D2000-1647 (February 28, 2001); Pensacola Christian College Inc. v. Gage, NAF File No. FA0110000010314 (December 12, 2001); Bridgestone Firestone, Inc. v. Jack Myers, WIPO Case No. D2000-0190 (July 6, 2000); Compusa Mgmt. Co. v. Customized Computer Training, NAF File No. FA0006000095082 (August 17, 2000). United States Court of Appeals decisions from several Circuits have similarly held that use of a trademark in a domain name for a bona fide criticism site is a protected fair use. See, e.g., Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005); TMI, Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004); Lucas Nursery and Landscaping, Inc. v. Grosse, 359 F.3d 806 (6th Cir. 2004); Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (9th Cir. 2004) This view was also successfully argued in WIPO Case No. D2009-1182. Americans' robust First Amendment protections trump trademark for criticism sites. [c.] [Specify in the space below why the domain name(s) should not be considered as having been registered and being used in bad faith.] Rule 3(b)(ix)(3); UDRP 4(a)(iii). [The Panel may consider any relevant aspects included in, but not limited to UDRP 4(b): (i.) Whether there are circumstances indicating that Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of Respondents documented out-of-pocket costs directly related to the domain name; or

Complainant does not correctly define typosquatting. From nolo.com (Exhibit D) we can see the commonly accepted definition: The process of acquiring misspellings of a domain name in the hopes of catching and exploiting traffic intended for another website. For example, a typosquatter might purchase domain names such as www.lnadsend.com and www.landswnd.com and then demand money for referring customers under the Land's End affiliate program. Typosquatting is a variation of cybersquatting, an

illegal practice in which a domain name is acquired in bad faith. Clearly, Complainant has redefined typosquatting to include perfectly legal behavior. The Panel must use the actual definition of typosquatting to asses whether bad faith use has occurred. It is not remotely plausible that a potential SelectQuote customer would accidentally type review after typing selectquote into their browser's address bar. Complaintant points to various spellings used in article titles on selectquotereview.com. These article titles have nothing to do with domain registration, and everything to do with search engine marketing. Respondent is reaching people looking for reviews of SelectQuote. Respondent relies not on confusion, but through skillful writing and promotion which is rewarded with a second place Google result for the phrase selectquote review. This is right behind epinions.com (rates SelectQuote 2/5) which is an online review site, and which also uses SelectQuote in the page title for it's reviews of SelectQuote. This shows that using complainants mark in reviews about the Complainant is in fact standard practice. See Exhibit E for the search results (which show page titles) and an example of the epinions page which reviews SelectQuote, while referring to SelectQuote by the mark. SelectQuote is behind both of these negative reviews in search results. We must question whether SelectQuote simply seeks to benefit from Respondent's skillful marketing to address their own inadequacies in this area. After Respondent's site launched, they tried to counter by registering the similar selectquotereviews.com, which falls behind both selectquotereview and epinions in search ranking. The search engines are finding the negative reviews about SelectQuote to be more relevant to someone searching for selectquote reviews. Were SelectQuote to win this proceeding, they would have forcibly acquired the fruits of someone else's labor, as selectquotereview hurts them by appearing high in Google search, not by being a typo. Finally, there has not been nor will there be an offer to sell this domain name. No bad faith can be found under a squatting rationale. (ii.) Whether Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

Respondent has not registered the domain name to prevent the owner of the mark from reflecting the mark. There has been no pattern of registrations, or any attempt to sell the domain. Respondent's use of Complainant's mark is Nominative Fair Use. This principle was first explicitly stated by the U. S. Ninth Circuit Court of Appeals in New Kids on the Block v. News America Publishing, Inc. The case in question dealt with a survey run by a magazine entitled the New Kids on the Block survey. The court found that there was no easy way to refer to New Kids on the Block without using the trademark. The elements of such a defense are as follows: 1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). 2. The user only uses as much of the mark as is necessary for the identification (e.g. the words but not the font or symbol). 3. The user does nothing to suggest sponsorship or endorsement by the trademark holder.

If these elements are present, the use is not a trademark use, and no dilution can occur. Clearly, in the case at hand, Respondent is using the complainants mark merely to refer to Complainant. The fonts and symbols used in conjunction with Complainant's mark on Complainant's own website are not used. It is extremely obvious that Respondent is not associated with Complainant. Even so, Respondent does specifically state this fact (Exhibit C). This defense was successfully used in the very similar Glenn Beck v Eiland-Hall Case D2009-1182: It equally appears that Respondent is making nominative fair use of Complainant's mark in the sense of using it to identify a well-known public figure (in a manner that does not use more of the mark than is necessary and does not create confusion as to Complainants sponsorship of Respondents activities). (iii.) Whether Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

Respondent is not a competitor, and the site is entirely non-commercial. Content of the website is not defamatory, it is not in the scope of this proceeding to determine if it is defamatory, the use is non-commercial, and Complainant also does not demonstrate bad faith use. Truth is a complete defense to a charge of defamation, and it is beyond the scope or a UDRP proceeding to verify the truth behind the allegations which Complainant erroneously states are false. Rather, the question is do they constitute bad faith use? WIPO Case No. D2008-1805 provides guidance: In contrast, fair-use criticism, even if libelous, does not constitute tarnishment and is not prohibited by the Policy, the primary concern of which is cybersquatting. All that should be necessary at this time is my contention that the facts reported on my website are true. As the defamation charge need not be addressed in a domain dispute, I will merely provide an extremely brief background in Exhibit G. As the UDRP is not meant to address trademark issues, it is not necessary to pollute this response with even the short version of why the Respondent's site is not defamatory. I only include the short version in the Annex, to satisfy the Panel that Respondent believes he would prevail against defamation charges were he in a proceeding which allows for the subpoena of witnesses and evidence. One of Complainant's exhibits shows an article title entitled Extortion at Selectquote. Respondent actually ran a correction on November 18th 2011 (Exhibit E). This correction is quite generous, considering that Mr. Dunham has not received all of the human resource records to which he is entitled by California law. In fact, record of a major promotion is missing, so Mr. Dunham's original assertion that SelectQuote is covering-up the threats to Mr. Dunham's daughter in order to hide money they owe Mr. Dunham may still be valid. Finally, Respondent is making non-commercial fair use of the trademark in question. Complainant does not appear to claim anywhere that Respondent is a competitor, or is making commercial use of the mark. See Western Hay Company v. Carl Forester. Complainant points out that Respondent mentions competitors as being the solution. WIPO Case No. D2007-0070 (zipzoomflysucks.com) gives guidance regarding a criticism site

damaging a trademark holder's business, or driving business to a competitor: Respondents statement that it intends to take business away from the Complainant, standing on its own, is not probative of whether the Respondents website is intended for the Respondents commercial gain. Any website or speech that is critical of a business by its very nature stands to decrease the targets business, and that is often the intent of such messages. Similarly, that Respondents website recommends that visitors use Newegg.com instead of the Complainant for computer parts does not demonstrate that Respondent is acquiring any commercial gain from operating the complaint website. Regardless of my solicitation of guest blog posts from SelectQuote competitors, I have not posted any. It is very unclear on what basis Complainant is accusing Respondent of bad faith use. There is no commercial interest, no cybersquatting, and no typosquatting. It appears Complainant would have us believe that any criticism of a trademark holder runs afoul of trademark law, so long as the trademark is used to refer to the trademark holder. This view is clearly erroneous. (iv.) Whether by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondents web site or other online location, by creating a likelihood of confusion with the Complainants mark as to the source, sponsorship, affiliation, or endorsement of Respondents web site or location or of a product or service on Respondents web site or location.] iv. Does not apply due to the non-commercial nature of Respondent's site.

Conclusion This criticism of Complainant is clearly non-commercial fair use. Complainant gives examples of criticism of the trademark holder, which is not bad faith use. Given that the Complainant cannot demonstrate bad faith use, does not show that any sensible member of the public would ever be confuse selectquotereview.com with selectquote.com, and that Respondent has rights in the domain name as a non-commercial fair use criticism site, Respondent respectfully asks asks that the Panel deny the remedy sought by Complainant. [4.] None [5.] RESPONSE TRANSMISSION OTHER LEGAL PROCEEDINGS

The Respondent asserts that a copy of the Response, as prescribed by FORUMs Supplemental Rules, has been sent or transmitted to the Complainant, in accordance with Rule 2(b). Rule 5(b)(vii); FORUM Supp. Rule 5. [6.] The Respondent respectfully requests that the Administrative Panel denies the remedy requested by the Complainant.

[7.]

CERTIFICATION

Respondent certifies that the information contained in this Response is to the best of Respondents knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

Respectfully Submitted, /s/ Thomas Dunham [Signature]

Thomas Dunham [Name] August 26th 2012 [Date] [Annex any documentary or other evidence upon which the Respondent relies, together with a schedule indexing such documents] Rule 5(b)(ix). [The Response, not including annexed material, shall not exceed ten (15) pages and shall be submitted electronically in a document separate from any Annexes.] FORUM Supp. Rule 5(c). [The Respondent shall submit the Response, including annexed material, to the National Arbitration Forum at domaindispute@adrforum.com or to the assigned case coordinator directly.] FORUM Supp. Rule 5(b) (see also Annex to the Supplemental Rules for permissible file types). [The Response may alternatively be submitted online;Respondents portion of any three member panel fees may be paid online as well. http://domains.adrforum.com]