Everlake Us Holdings Company v. Qian Meng Dan / mengdanqian / QMD
Claim Number: FA2206001998741
Complainant is Everlake Us Holdings Company (“Complainant”), represented by Janet J. Lee of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Qian Meng Dan / mengdanqian / QMD (“Respondent”), China.
REGISTRARS AND DISPUTED DOMAIN NAMES
The domain names at issue are <eeverlakelife.com>, <everakelife.com>, <everlakeelife.com>, <everlajelife.com>, <everlakelif.com>, <ecerlakelife.com>, <eberlakelife.com>, <eerlakelife.com>, <everlakelide.com>, <everlakelifee.com>, <everlakekife.com>, <everlakeife.com>, <everkakelife.com>, <eveerlakelife.com>, <eveelakelife.com>, <evelakelife.com>, <everlakelfe.com>, <everlaelife.com>, <everlaakelife.com>, <everlakelie.com>, <everlakelifes.com>, and <everlakelife.co> (“Domain Names”).
The Domain Names are registered with either, DNSPod, Inc. or Sav.com, LLC (“Registrars”)
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 1, 2022; the Forum received payment on June 1, 2022.
On June 1, 2022 and June 08, 2022, the Registrars confirmed by e-mail to the Forum that the Domain Names are registered with them and that the named respondents are the current registrants. The Registrars have verified that the named respondents are bound by the Registrars’ registration agreements and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 15, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of July 5, 2022 by which the named respondents could each file a Response to the Complaint, via e-mail to all entities and persons listed on their registrations as technical, administrative, and billing contacts, and to their respective “postmaster” email addresses. Also on June 15, 2022, Chinese and English language Written Notices of the Complaint, notifying the named respondents of the e-mail addresses served and the deadline for Responses, was transmitted to via post and fax to all entities and persons listed on the named respondents’ registrations as technical, administrative and billing contacts.
Having received no response from any of the named respondents, the Forum transmitted to the parties Notifications of Respondent Default.
On July 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 a response from any named respondent.
Complainant requests that the domain names be transferred from the named respondents to Complainant.
The Domain Names are not registered to one holder. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Nevertheless, Complainant has alleged that the Domain Names are effectively controlled by a single person or entity, operating under several aliases.
The approach taken to this issue by the majority of UDRP panelists is to allow a single administrative proceeding in respect of several domain names not commonly held if there is reasonable evidence of a claim to actual control by one person or entity. Here, Complainant points out that all 22 Domain Names were registered on March 25, 2022 - 21 of them with one registrar and the final name a few minutes later that same day with the other registrar. Further, Complainant points out that the name of one registrant, “Qian Meng Dan”, is very similar to the name/abbreviation of the other, “mengdanqian / QMD”, and also that the registrants have the same phone number in China.
The Panel considers that there is sufficient evidence of Complainant’s assertion of a single controlling entity and so allows these proceedings to continue against the named respondents, hereinafter referring to them collectively as “Respondent”.
The Complaint was submitted in English. Sav.com LLC’s registration agreement is in English, whilst DNSPod, Inc.’s agreement is in Chinese. With the exception of <everlakelife.co>, the Domain Names are registered with DNSPod, Inc.. Under Rule 11(a), the language of the proceedings in respect of these 21 domain names is Chinese. Nevertheless, the Panel has discretion to allow the proceedings to continue in a language other than Chinese if, for example, it is shown that a respondent can read and understand that other language and it is expeditious for the matter to so proceed. Here, Complainant’s submission is that English is the proper language for these proceedings because:
“[r]espondent registered at least one of the Infringing Domains by a Registrar who provides the Domain Name Registrant Agreement in the English language. Moreover, the Respondent’s Infringing Domains resolve to websites that are entirely in English, the Infringing Domains all comprise of English words and gTLDs, and Respondent is targeting a United States company.”
Panelists applying the Policy have long set a low threshold for satisfaction of this language requirement partly, it must be assumed, since a complainant’s capacity to positively prove (in the absence of a response) a respondent’s proficiency in a language is limited and awkward.
That said, this Panel has never felt drawn by the popular argument that a “respondent is targeting a United States company”[i]. Aside from the obvious insinuation, one difficulty is that Rule 11 regulates a preliminary procedural matter and this argument pre-judges the respondent’s intentions.
The submission that a resolving webpage has English language content is also less than compelling, especially in those many cases where it might fairly be concluded that the content was added by someone other than the respondent. In all probability, this is another such case. In each instance the Domain Names resolves to a landing page with links to “Life Insurance”, “Term Life Insurance” and “Variable Annuities”. The Panel is of the view that this carries almost no weight in terms of proof of Respondent’s capacity to read and understand English.
What remains is the submission, again commonly expressed as it has been here, that the domain name is comprised of English words. Complainants are prone to presenting this as some sort of self-contained argument. Here, for example, and as will be underscored shortly in the paragraph 4(a)(i) analysis, the trademark or some misspelt permutation of it, is the dominant feature of the Domain Names. The trademark at issue, EVERLAKE, is not what the Panel would describe as ‘English words’ for the purposes of assessing proficiency in understanding English. Complainant offer insurance services. Its trademark registration (see later) covers “life insurance”. Aside from the gTLD, all that is added to the trademark is the word “life”, or some misspelling of it. Surely, the argument pointing towards Respondent’s facility with English is that a word entirely descriptive of Complainant’s services under the trademark has been chosen to append in each case to the trademark and the Domain Names are either faithful additions of those two integers or, for the most part, misspelt iterations thereof. Further, the Panel would have thought that the many misspellings are themselves an indication of capacity in English (albeit that this again pre-supposes intention). In any event, what is lacking in submissions of the kind presented here is anything of assistance to the Panel, which is left to reason the matter for itself. Having done so, the Panel finds on balance sufficient indication that the Respondent can read and understand English and so determines that the proceedings should continue in English against all of the Domain Names.
A. Complainant
Complainant asserts trademark rights in EVERLAKE. Complainant holds a national registration for that trademark and submits that the Domain Names are confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the Domain Names.
Complainant alleges that Respondent registered and used the Domain Names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant provides insurance services by reference to the trademark, EVERLAKE, registered with the United States Patent & Trademark Office (“USPTO”) as Reg. No. 6,748,697, from April 12, 2021;
2. the Domain Names were all registered on March 25, 2022 and resolve to identical webpages, described already; and
3. there is no association between the parties and Complainant has not authorized Respondent to use its trademark or register any domain name incorporating its trademark.
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 based on 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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights[ii]. Complainant therefore has rights since it provides proof of its registration of the trademark with the USPTO, a national trademark authority.
For the purposes of comparison of the Domain Names with the trademark, the gTLD “.com” and ccTLD “.co”, can be disregarded as trivial. Likewise, the descriptive word “life” is of no distinctive value and has no significant impact on the trademark which remains the recognizable and dominant part of each Domain Name. Further, that remains so in the many instances where there is a minor misspelling of the trademark, or of the word “life”, or both. The Panel finds that the Domain Names are confusingly similar to Complainant’s trademark for the purposes of this aspect of the Policy[iii].
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the Domain Names, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests[iv].
The names of the underlying domain name holders, as disclosed by the Registrars, do not provide any indication that Respondent might be commonly known by any of the disputed domain names. There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties and Respondent has no authority to use the trademark.
Complainant provides screenshots of the resolving webpages, all identical, all showing links to competitive insurance services. Such use is not a bona fide offering or legitimate noncommercial or fair use under the Policy[v]. The Panel finds that Respondent has no rights or legitimate interests in the Domain Names. The onus shifts to Respondent and, in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the Domain Names were registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the 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
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s actions fall under paragraph 4(b)(iv) above. The Panel has already found the Domain Names to be confusingly similar to the trademark. The Panel accepts Complainant’s submission that the resolving websites exist for commercial gain in one form or another. In terms of the Policy, the Panel finds that Respondent has intentionally used the Domain Names to attract, for commercial gain, internet users to its websites by creating a likelihood of confusion with as to the source, sponsorship, affiliation, or endorsement of those websites by implying to internet users that they will reach Complainant’s website[vi].
Panel finds that Complainant has satisfied the third and final element of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the Domain Names be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: July 13, 2022
[i] Or any complainant located or incorporated in an English speaking country.
[ii] See, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).
[iii] See, for example, Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).
[iv] See, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
[v] See, for example, Expedia, Inc. v. Compaid, FA 520654 (Forum Aug. 30, 2005) finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
[vi] See, for example, Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”).
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