Brown Advisory Incorporated v. Hai Qiang Gong
Claim Number: FA2208002008384
Complainant is Brown Advisory Incorporated (“Complainant”), represented by Robert White of Lexsynergy Limited, United Kingdom. Respondent is Hai Qiang Gong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <brownadvisoy.com> and <browadvisory.com>, registered with Cloud Yuqu LLC.
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 August 15, 2022. The Forum received payment on August 15, 2022.
On August 16, 2022, Cloud Yuqu LLC confirmed by e-mail to the Forum that the <brownadvisoy.com> and <browadvisory.com> domain names are 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, 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 August 16, 2022, the Forum served the Complaint and all Annexes, including an English and Chinese language Written Notice of the Complaint, setting a deadline of September 6, 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@brownadvisoy.com, postmaster@browadvisory.com. Also on August 16, 2022, 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 9, 2022, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING
As noted, the Cloud Yuqu LLC registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding in relation to the <brownadvisoy.com> and <browadvisory.com> domain names shall be Chinese unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English. The Panel finds that persuasive evidence has been adduced by Complainant to suggest that the Respondent is conversant and proficient in the English language. 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
Complainant, Brown Advisory Incorporated, is an investment management and strategic advisory firm with offices in Austin, Baltimore, Boston, the Carolinas, Delaware, London, New York, San Francisco, Singapore, Virginia and Washington, D.C. Complainant has rights in the BROWN ADVISORY mark based upon registration with the United States Patent and Trademark Office (“USPTO”) and other trademark agencies worldwide. Since 2003 Complainant has operated its corporate website at “www.brownadvisory.com”.
Respondent’s <brownadvisoy.com> and <browadvisory.com> domain names are confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the <brownadvisoy.com> and <browadvisory.com> domain names as they amount to typosquatting. Respondent is not licensed or authorized to use Complainant’s BROWN ADVISORY mark and is not commonly known by the domain names. Additionally, Respondent does not use the domain names for any bona fide offering of goods or services or legitimate non-commercial or fair use. Instead, Respondent uses the domain names to direct Internet users to parked landing pages containing links to services that compete with, or are unrelated to Complainant. In addition, Respondent uses the domain names for illegal activity such as passing itself off as Complainant.
Respondent registered the <brownadvisoy.com> and <browadvisory.com> domain names in bad faith with actual knowledge of Complainant’s rights in the BROWN ADVISORY mark. Respondent uses the domain names in bad faith to create the false impression it is associated with Complainant, intending to confuse Internet users for commercial gain. The Respondent’s choice to omit the letter “r” in the case of “brownadvisoy.com” and the letter “n” in the case of “browadvisory.com” points to blatant and overt typosquatting. Respondent has also engaged in a pattern of bad faith domain name registration and use. Finally, Respondent used a privacy service when registering the domain names to hide its identity.
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 BROWN ADVISORY mark based upon registration with the USPTO (e.g., Reg. No. 4,360,127, registered July 2, 2013) and with many other trademark agencies. The Panel finds Respondent’s <brownadvisoy.com> and <browadvisory.com> domain names to be confusingly similar to Complainant’s mark because they constitute misspellings of the BROWN ADVISORY mark, removing the “r” from “advisory” or the “n” from “brown”, and adding the inconsequential generic top-level domain (“gTLD”) “.com” to form the disputed domain names.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names 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 names, 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 names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <brownadvisoy.com> and <browadvisory.com> domain names were registered on June 23, 2022, many years after Complainant has shown that its mark and its website had become very well-known. On July 6, 2022 the domain names resolved to parked pages with pay-per-click links that either compete with or are unrelated to Complainant.
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 names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <brownadvisoy.com> and <browadvisory.com> domain names. 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 names.
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 names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain names, 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.
In the present case the Panel finds Complainant’s BROWN ADVISORY mark to be well-known and Respondent’s domain names to be deliberate misspellings of Complainant’s mark. This alone amounts to bad faith typosquatting.
These circumstances and the circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s well-known BROWN ADVISORY mark when Respondent registered the <brownadvisoy.com> and <browadvisory.com> domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s websites and of the services promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
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 <brownadvisoy.com> and <browadvisory.com> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 11, 2022.
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