Transamerica Corporation v. Xu Hai Min
Claim Number: FA2211002020958
Complainant is Transamerica Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., US. Respondent is Xu Hai Min (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <transanerica.com>, (the “Domain Name”) registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on November 18, 2022; Forum received payment on November 18, 2022.
On November 21, 2022, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to Forum that the <transanerica.com> Domain Name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 November 21, 2022, Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of December 12, 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@transanerica.com. Also on November 21, 2022, the Chinese 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 20, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant owns the trade mark TRANSAMERICA in the USA for financial services with first use recorded as 1929. It owns <transamerica.com>.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark the comparison being only with the second level part of the Domain Name. It differs only by one character – a letter ‘”n” instead of “m” – and is a classic case of typosquatting.
Respondent has no rights and legitimate interests in respect of the Domain Name. Respondent has not been commonly known by the Domain Name and is not affiliated with the Complainant in any way. Complainant has not given Respondent permission to use the Complainant’s mark.
Respondent is using the Domain Name to redirect Internet users to pay per click links some of which compete with the Complainant’s business. This is not a bona fide offering of goods and services or a legitimate noncommercial or fair use. This is bad faith pursuant to Policy paragraph 4(b)(iv) by using the Domain Name to attract and mislead consumers for its own profit. This also disrupts the Complainant’s competing business under Policy paragraph 4(b)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark TRANSAMERICA in the USA for financial services with first use recorded as 1929. It owns <transamerica.com>.
The Domain Name registered in 2019 has been used for pay per click links.
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”).
The Domain Name consists of a misspelled version of the Complainant's TRANSAMERICA mark (which is registered in USA for financial services and used since 1929) and the gTLD .com. The Panel agrees that misspellings such as substitution of a letter do not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Coachella Music Festival LLC v Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum Jul 17, 2017).
The gTLD .com does not serve to distinguish the Domain Name from the 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 the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the 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 Sept. 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).
It is clear from the evidence that the Respondent has used the page attached to the Domain Name for commercial pay per link links. The page attached to the Domain Name does not make it clear that there is no commercial connection with the Complainant and does not amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
The Respondent has not answered this Complaint or rebutted the prima facie case put forward by the Complainant and set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. 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 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).
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services products not associated with the Complainant in a disruptive and confusing manner. See Health Republic Insurance Company v above.com Legal, FA 1506001622068 (Forum July 10, 2015) (“The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant’s business thereby showing bad faith in use and registration under Policy 4 (b)(iii).”). Additionally the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web sites or services under Policy paragraph 4(b)(iv). See also Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum Jun, 4, 2015).
As such, the Panelist believes that the 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 Paragraphs 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 <transanerica.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 20, 2022
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