Transamerica Corporation v. Zhi Chao Yang
Claim Number: FA2206001999457
Complainant is Transamerica Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., Georgia, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <transamericaagencynetwor.com>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 7, 2022; the Forum received payment on June 7, 2022. The Complaint was submitted in English.
On June 8, 2022, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <transamericaagencynetwor.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 June 9, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of June 29, 2022 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@transamericaagencynetwor.com. Also on June 9, 2022, the Chinese and English language 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 July 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v. Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Respondent’s website available at the disputed domain name uses English characters and words therein, suggesting that Respondent is proficient in the English language. Further, the Privacy Policy for Respondent’s <transamericaagencynetwor.com> domain name is in English.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, Transamerica Corporation, offers life insurance, investment planning, and retirement services. Complainant has rights in the TRANSAMERICA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,863,327 registered December 1 2015). Respondent’s <transamericaagencynetwor.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the TRANSAMERICA mark in its entirety and adds the terms “agency” and networ” and the “.com” generic top-level domain (“gTLD”) to create a misspelling of Complainant’s “transamericaagencynetwork.com” website.
Respondent has no legitimate interests in the <transamericaagencynetwor.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the TRANSAMERICA mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a page with various pay-per-click links.
Respondent registered and uses the <transamericaagencynetwor.com> domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TRANSAMERICA mark.
B. Respondent
Respondent failed to submit a response in this proceeding.
Complainant, Transamerica Corporation, offers life insurance, investment planning, and retirement services. Complainant has rights in the TRANSAMERICA mark through its registration of the mark with the USPTO (e.g., Reg. No. 4,863,327 registered December 1 2015). Respondent’s <transamericaagencynetwor.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <transamericaagencynetwor.com> domain name on January 25, 2022.
Respondent has no legitimate interests in the <transamericaagencynetwor.com> domain name. The disputed domain name resolves to a page with various pay-per-click links.
Respondent registered and uses the <transamericaagencynetwor.com> domain name in bad faith.
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”).
Complainant has rights in the TRANSAMERICA mark based upon the registration with the USPTO. Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <transamericaagencynetwor.com> domain name is confusingly similar to Complainant’s TRANSAMERICA mark because it incorporates the TRANSAMERICA mark in its entirety and adds the terms “agency” and networ” and the “.com” generic top-level domain (“gTLD”) to create a misspelling of Complainant’s “transamericaagencynetwork.com” website.
Respondent lacks rights or legitimate interests in the <transamericaagencynetwor.com> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the TRANSAMERICA mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Deutsche Lufthansa AG v. Mohamed elkassaby, FA 1801815 (Forum Sep. 17, 2018) (“The WHOIS lists “Mohamed elkassaby” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).”). The WHOIS information for the disputed domain name lists the registrant as “Zhi Chao Yang”. Complainant asserts it has not licensed or otherwise authorized Respondent to use Complainant’s TRANSAMERICA mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the <transamericaagencynetwor.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the disputed domain name resolves to a page displaying links related to the goods and services associated with Complainant and its competitors. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (Forum Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business).
Respondent registered and uses the name in bad faith per Policy ¶ 4(b)(iii) and (iv) because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to redirect consumers to links for competing goods or services is evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”). See also Clark Equipment Company v. Namase Patel / Mumbai Domains, FA1406001566288 (Forum July 30, 2014) (“The Panel observes that the Respondent’s disputed domain name leads to a website that features links to products that directly compete with Complainant’s products. The Panel determines that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and Respondent likely profits from the resulting confusion. Therefore, the Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”).
Respondent had actual knowledge of Complainant's rights in the TRANSAMERICA mark. Respondent's use of Complainant’s mark in the <transamericaagencynetwor.com> domain name shows that Respondent had actual knowledge of Complainant's mark and rights. Therefore, Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name")."
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <transamericaagencynetwor.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 20, 2022
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