Brighthouse Services, LLC v. Shi Lei
Claim Number: FA1807001799173
Complainant is Brighthouse Services, LLC (“Complainant”), represented by Minnie Kim of Moore & Van Allen PLLC, North Carolina, USA. Respondent is Shi Lei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brigthousefinancial.com> (the “Domain Name”), registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 30, 2018; the Forum received payment on July 30, 2018.
On August 2, 2018, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <brigthousefinancial.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 August 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2018 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@brigthousefinancial.com. Also on August 21, 2018, the 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 September 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
A. Complainant
Complainant’s contentions can be summarised as follows:
Complainant owns the trade mark BRIGHTHOUSE FINANCIAL, registered, inter alia, in the USA for financial and insurance services with first use recorded as 2016.
The Domain Name registered in 2017 is confusingly similar to Complainant’s trade mark omitting only one letter ‘h’ and adding the gTLD “.com.”
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name and has not been authorised by Complainant to use Complainant’s mark. There is no bona fide offering of goods and services or a legitimate non commercial fair use as the Domain Name has been used for competing pay per click links which is also bad faith registration and use.
Typosquatting is per se an indication of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark BRIGHTHOUSE FINANCIAL registered, inter alia, in the USA for financial and insurance services with first use recorded as 2016.
The Domain Name registered in 2017 has been used for pay per click links competing with Complainant.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Identical or Confusingly Similar
The Domain Name consists of a misspelling of Complainant’s BRIGHTHOUSE FINANCIAL mark (registered, inter alia, in the USA for financial and insurance services and used since at least 2016) omitting only a single silent ‘h’ and adding the gTLD “.com.”
A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which Complainant has rights.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site to which the Domain Name redirects offers links to services in competition with those of Complainant and has been pointed to third party services not connected with Complainant. It is commercial so cannot be a legitimate non commercial or fair use. It does not make it clear that there is no commercial connection with Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See McGuireWoods LLP v Mykhailo Loginov/Loginov Enterprises doo, FA1412001584837 (Forum Jan 22, 2015) (‘The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with the Complainant .. is not a bona fide offering of goods or services pursuant to 4(c)(i) and it is not a legitimate non commercial or fair use pursuant to Policy 4(b)(iii).”).
Typosquatting is also an indication of a lack of rights and legitimate interests.
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing a sign confusingly similar to Complainant’s mark and use it for competing services in what appears on the face of it to be a typosquatting registration.
In the opinion of the Panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the links on it are connected to or approved by Complainant as it offers competing services under a sign confusingly similar to Complainant’s mark. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or services on it likely to disrupt the business of Complainant. See American Council on Education and GED Testing Service LLC v Anthony Williams, FA 1760954 (Forum January 8, 2018) and Capital One Financial Corp DN Manager/Whois-Privacy.net Ltd, FA1504001615034 (Forum June 4, 2015).
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name which entirely incorporates a misspelling of a mark in the hope that Internet users will mistype the complainant’s mark and be taken to the respondent’s site is registration and use in bad faith).
As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paras. 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brigthousefinancial.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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