AMS Group Holdco, LLC v. Li Jin Liang / 李金梁
Claim Number: FA2012001925266
Complainant is AMS Group Holdco, LLC (“Complainant”), represented by Norton Rose Fulbright US LLP, Texas, USA. Respondent is Li Jin Liang / 李金梁 (“Respondent”), Henan Province, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <allmysos.com>, registered with DNSPod, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 16, 2020; the Forum received payment on December 16, 2020.
On December 17, 2020, DNSPod, Inc. confirmed by e-mail to the Forum that the <allmysos.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 22, 2020, the Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of January 11, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@allmysos.com. Also on December 22, 2020, the Chinese Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Complainant argues that the proceedings should be in English, since the domain name is comprised of English words, the disputed domain’s website is written in English, and translating the complaint and further documents into Chinese would cause Complainant to incur significant time delays and expenses. The Panel agrees and determines, under Rule 11(a), that the proceedings will be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <allmysos.com> domain name is confusingly similar to Complainant’s ALL MY SONS mark.
2. Respondent does not have any rights or legitimate interests in the <allmysos.com> domain name.
3. Respondent registered and uses the <allmysos.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant offers professional moving and storage services throughout the United States, and holds a registration for the ALL MY SONS mark with the United States Patent and Trademark Office (“USPTO”), as well as its common law rights in the mark. (Reg. 1,814,527, registered Dec. 28, 1993).
Respondent registered the <allmysos.com> domain name on Nov. 26, 2020, and uses it to host competing pay-per-click links.
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."
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.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant has rights in the ALL MY SONS mark through registration with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <allmysos.com> domain name uses the ALL MY SONS mark, omits a single letter, and adds the “.com” gTLD. Under Policy ¶ 4(a)(i), misspelling a mark by removing a letter and adding the “.com” gTLD is insufficient to distinguish a disputed domain name from the mark it incorporates. See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) (“Respondent’s <morganstanle.com> domain name is confusingly similar to Complainant’s MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter ‘y’ and spacing within the mark, and appends the ‘.com’ gTLD.”). Therefore, the Panel finds that Respondent’s <allmysos.com> domain name is confusingly similar to Complainant’s ALL MY SONS mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent is not commonly known by the <allmysos.com> domain name. Complainant ahs not authorized or licensed Respondent to use its ALL MY SONS mark in the disputed domain name. The WHOIS of record identifies Respondent as “Li Jin Liang.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.).
Complainant also argues that Respondent does not use the <allmysos.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name’s resolving website to host competing pay-per-click links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides screenshots of the disputed domain name’s resolving website, which features parked pay-per-click links for competing moving services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <allmysos.com> domain name for bad faith attraction for commercial gain. Under Policy ¶ 4(b)(iv), using a disputed domain name to confuse internet users into visiting the disputed domain name’s resolving website, where Respondent hosts competing pay-per-click links, constitutes bad faith. See Maricopa Cmty. Coll. Dist. v. College.com, LLC, FA 536190 (Forum Sept. 22, 2005) (“The Panel infers that Respondent receives click-through fees for diverting Internet users to a competing website. Because Respondent’s domain name is identical to Complainant’s PHOENIX COLLEGE mark, Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Thus, Respondent’s use of the <phoenixcollege.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent registered and uses the <allmysos.com> domain name in bad faith by typosquatting. Under Policy ¶ 4(a)(iii), registering a slightly misspelled version of a popular mark in a domain name establishes bad faith. See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] 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.”). The Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii) by typosquatting.
Complainant argues that Respondent registered the <allmysos.com> domain name in bad faith as it had actual knowledge of Complainant’s rights in the ALL MY SONS mark at the time of registration. Complainant claims that Respondent’s knowledge of the ALL MY SONS mark is clear from the intentional misspelling and the fact that the domain resolves to a website with pay-per-click links to competing moving services. The Panel agrees and finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <allmysos.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 18, 2021
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