General Motors LLC v. Shi Lei
Claim Number: FA2204001994443
Complainant is General Motors LLC ("Complainant"), represented by Nivita Beri of Honigman LLP, Michigan, USA. Respondent is Shi Lei ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mygmrewardscards.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2022; the Forum received payment on April 29, 2022.
On May 6, 2022, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by email to the Forum that the <mygmrewardscards.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 May 10, 2022, the Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 31, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@mygmrewardscards.com. Also on May 10, 2022, the Chinese and English language Written Notice of the Complaint, notifying Respondent of the email 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 June 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. The Complaint and the Written Notice of the Complaint have been served upon Respondent in both English and Chinese, and Respondent has neither objected or otherwise responded nor indicated any intent to participate in the proceeding.
The Panel notes that in a previous proceeding involving the same parties, two similar domain names, and otherwise similar circumstances, the Panel elected to conduct the remainder of the proceeding in English. See General Motors LLC v. Shi Lei, FA 1951694 (Forum July 23, 2021) (ordering transfer of <mygmcreward.com> and <mygmreward.com>). For substantially the same reasons as those set forth in that decision, the Panel considers it appropriate to conduct the remainder of this proceeding in English.
A. Complainant
Complainant is one of the world's largest automakers. Among its brands is GM, used as a mark in connection with its products and services including GM branded reward-based credit cards. Complainant contends that the GM mark is famous (and has been so found in at least one proceeding under the Policy, see General Motors LLC v. Purple Bucquet / PrivacyProtect.org, D2011-0066 (WIPO Mar. 15, 2011) (ordering transfer of <gmfinancialservices.com>). Complainant owns trademark registrations for GM, MY GM REWARDS, THE GM CARD, and other related marks in the United States and other jurisdictions, and also asserts common law trademark rights. Complainant owns various domain names corresponding to or incorporating its marks, including the domain name <mygmrewardscard.com>, which it registered on March 16, 2021.
Respondent registered the disputed domain name <mygmrewardscards.com> on March 17, 2021. The domain name is being used for a website composed of what appear to be pay-per-click links labeled "Rewards Programs" and "Rewards Points Programs." Complainant states that Respondent is not commonly known by the domain name, is not a licensee of Complainant, and is not authorized to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <mygmrewardscards.com> is confusingly similar to its GM, MY GM REWARDS, and THE GM CARD marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <mygmrewardscards.com> incorporates Complainant's registered GM and MY GM REWARDS marks (omitting spaces from the latter) and most of Complainant's THE GM CARD mark, appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., General Motors LLC v. Shi Lei, FA 1951694, supra (finding <mygmcreward.com> and <mygmreward.com> confusingly similar to GM and GMC). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been for a website compose of what appear to be pay-per-click links to sites related to rewards programs. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., General Motors LLC v. Shi Lei, FA 1951694, supra (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to or incorporating Complainant's marks (doing so only one day after Complainant registered a similar domain name), and is using it to display pay-per-click links. Respondent's conduct demonstrates the bad faith registration and use required by Paragraph 4(a)(iii) of the Policy. See General Motors LLC v. Shi Lei, FA 1951694, supra (finding bad faith registration and use of <mygmcreward.com> and <mygmreward.com>). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mygmrewardscards.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 13, 2022
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