Transamerica Corporation v. Meng Dan Qian
Claim Number: FA2206002002706
Complainant is Transamerica Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., Georgia, USA. Respondent is Meng Dan Qian (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain name at issue is <tr-transamerica.com>, <ts-transamerica.com>, and <tsr-transamerica.com>, registered with Cloud Yuqu LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2022; the Forum received payment on June 30, 2022.
On July 1, 2022, Cloud Yuqu LLC confirmed by e-mail to the Forum that the <tr-transamerica.com>, <ts-transamerica.com>, <tsr-transamerica.com> domain names is registered with Cloud Yuqu LLC and that Respondent is the current registrant of the names. Cloud Yuqu LLC has verified that Respondent is bound by the Cloud Yuqu LLC 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 July 5, 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 25, 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@tr-transamerica.com, postmaster@ts-transamerica.com, postmaster@tsr-transamerica.com. Also on July 5, 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 29, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of this proceeding. Since the disputed domain names and the resolving websites incorporate English characters and words, the Panel determines that Respondent is conversant in English and therefore this proceeding will be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <tr-transamerica.com>, <ts-transamerica.com>, <tsr-transamerica.com> domain names are confusingly similar to Complainant’s TRANSAMERICA mark.
2. Respondent does not have any rights or legitimate interests in the <tr-transamerica.com>, <ts-transamerica.com>, <tsr-transamerica.com> domain names.
3. Respondent registered and uses the <tr-transamerica.com>, <ts-transamerica.com>, <tsr-transamerica.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant is a life insurance corporation and holds a registration for the TRANSAMERICA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 718,358 registered July 1, 1961).
Respondent registered the <tr-transamerica.com>, <ts-transamerica.com>, <tsr-transamerica.com> domain names (the “disputed domain names”) on May 20, 2020, and uses them to compete 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 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”).
Respondent’s disputed domain names incorporate Complainant’s TRANSAMERICA mark and add the letters “tr,” “ts,” or “tsr” and the “.com” gTLD. The addition of letters and a gTLD fails to distinguish a domain name from a mark. See Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain names as Respondent is not commonly known by the domain names and has no license or consent to use the TRANSAMERICA mark. The WHOIS information associated with the disputed domain names shows that Respondent is known as “Meng Dan Qian.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant contends that Respondent’s use of the disputed domain names is not a bona fide offering or a legitimate noncommercial or fair use because they are used to host third-party links, some of which offer services that are similar to Complainant’s services. Using a disputed domain name for links and to compete with a complainant is not a bona fide offering or a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Complainant demonstrates that the disputed domain names resolve to webpages containing pay-per-click hyperlinks and advertisements for competing insurance services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the disputed domain names in bad faith because Respondent seeks to commercially benefit by trading on Complainant’s goodwill. Using a disputed domain name to host pay-per-click advertisements that compete with a complainant’s business demonstrates bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to competing websites. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iii)); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Accordingly, the Panel find that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant also argues that Respondent had knowledge of Complainant’s rights in the TRANSAMERICA mark when it registered the disputed domain names. The Panel agrees, noting Respondent’s direct competition with Complainant, and finds that Respondent had actual knowledge of Complainant’s right in mark, showing further bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tr-transamerica.com>, <ts-transamerica.com>, and <tsr-transamerica.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 1, 2022
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