The Hagerty Group, LLC v. xuhaimin
Claim Number: FA2111001972747
Complainant is The Hagerty Group, LLC (“Complainant”), represented by John Di Giacomo of Revision Legal, PLLC, Michigan, USA. Respondent is xuhaimin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwhagerty.com>, registered with DNSPod, Inc.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2021. The Forum received payment on November 10, 2021. The Complaint was received in English.
On November 11, 2021, DNSPod, Inc. confirmed by e-mail to the Forum that the <wwwhagerty.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, which is in Chinese, 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 November 16, 2021, the Forum served the English language Complaint and all Annexes, including an English and Chinese language Written Notice of the Complaint, setting a deadline of December 6, 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@wwwhagerty.com. Also on November 16, 2021, the English and Chinese language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, were 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 December 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 PROCEEDINGS
As noted, the DNSPod, Inc. registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the <wwwhagerty.com> domain name shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant submits that the proceeding should be conducted in English because Respondent has registered the term “Hagerty”, an Irish surname, in the .com top level domain; the website to which the domain name resolves displays advertisements in English; and users of the website are redirected to insurers in the United States that utilize the English language.
In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Chinese language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Founded in 1973, Complainant, The Hagerty Group, LLC, is the world’s largest insurer of classic and exotic automobiles, boats and motorcycles. Its primary website is at “www.hagerty.com”. Complainant has rights in the HAGERTY mark based upon 40 registrations in various countries, including with the United States Patent and Trademark Office (“USPTO”). Complainant also has common law rights in the HAGERTY mark based upon extensive use. Respondent’s <wwwhagerty.com> domain name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <wwwhagerty.com> domain name. Respondent is not commonly known by the domain name and is not authorized to use Complainant’s HAGERTY mark. Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the domain name redirects users seeking Complainant’s website to websites that advertise other insurance companies in competition with Complainant’s well-known business to generate revenue for Respondent.
Respondent registered the <wwwhagerty.com> domain name in bad faith with constructive and/or actual notice of Complainant’s rights in the HAGERTY mark and uses it in bad faith to disrupt Complainant’s business for financial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 shown that it has rights in the HAGERTY mark based upon numerous registrations, including with the USPTO (e.g., No. 2,814,153, Registered February 10, 2004). The Panel finds Respondent’s <wwwhagerty.com> domain name to be confusingly similar to Complainant’s mark because it incorporates the mark in its entirety, adding the letters “www” at the beginning, a common subdomain indicator standing for “world wide web” that is usually separated from the domain name by a period. This difference is insufficient to distinguish the <wwwhagerty.com> domain name from the HAGERTY mark. The inconsequential “.com” generic top-level domain (“gTLD”) may be ignored when considering this element.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <wwwhagerty.com> domain name was registered on March 7, 2021 many years after Complainant first used its HAGERTY mark and many years after Complainant first used its “www.hagerty.com” website. It resolves to a website which displays the HAGERTY mark and hosts links to third party insurance services that compete with Complainant’s services.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <wwwhagerty.com> domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iii) 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 its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was actually aware of Complainant’s HAGERTY mark when Respondent registered the <wwwhagerty.com> domain name and did so primarily to disrupt the business of Complainant, a competitor of Respondent, and that Respondent is using the domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion as to the source of Respondent’s website and of the services promoted on that website. These circumstances demonstrate registration and use in bad faith under Policy ¶ 4(b)(iii) and(iv).
Further, the <wwwhagerty.com> domain name is clearly a deliberately typosquatted version of the Complainant’s website address “www.hagerty.com”, designed to mislead Internet users mistakenly omitting the period into believing they are accessing Complainant’s website. This alone demonstrates bad faith registration and use.
Complainant has established this element.
DECISION
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 <wwwhagerty.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 14, 2021
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