Gulfstream Aerospace Corporation v. YangZhiChao
Claim Number: FA2211002021352
Complainant is Gulfstream Aerospace Corporation (“Complainant”), represented by Michael Justus, District of Columbia. Respondent is YangZhiChao (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gulfsrteam.com>, <gulfsstream.com>, <gulfatream.com>, <gulfsyream.com>, <gulfstrean.com>, <gulfstresm.com>, <gulfstraem.com>, <gylfstream.com>, <gulfstrram.com>, <gulftsream.com>, <gulgstream.com>, <gulfstreamm.com>, <gulfsrream.com>, <gulfstteam.com>, <gulfsteeam.com>, <guulfstream.com>, <gulffstream.com>, <glufstream.com>, <gulsftream.com>, <gulfdtream.com>, <gulfstrream.com>, <gulfstrwam.com>, <gulfstrema.com>, and <ggulfstream.com>, registered with 22net, Inc..
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.
The Honorable Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on November 22, 2022; Forum received payment on November 22, 2022.
On November 23, 2022, 22net, Inc. confirmed by e-mail to Forum that the <gulfsrteam.com>, <gulfsstream.com>, <gulfatream.com>, <gulfsyream.com>, <gulfstrean.com>, <gulfstresm.com>, <gulfstraem.com>, <gylfstream.com>, <gulfstrram.com>, <gulftsream.com>, <gulgstream.com>, <gulfstreamm.com>, <gulfsrream.com>, <gulfstteam.com>, <gulfsteeam.com>, <guulfstream.com>, <gulffstream.com>, <glufstream.com>, <gulsftream.com>, <gulfdtream.com>, <gulfstrream.com>, <gulfstrwam.com>, <gulfstrema.com>, and <ggulfstream.com> domain names are registered with 22net, Inc. and that Respondent is the current registrant of the names. 22net, Inc. has verified that Respondent is bound by the 22net, Inc. 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 28, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 19, 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@gulfsrteam.com, postmaster@gulfsstream.com, postmaster@gulfatream.com, postmaster@gulfsyream.com, postmaster@gulfstrean.com, postmaster@gulfstresm.com, postmaster@gulfstraem.com, postmaster@gylfstream.com, postmaster@gulfstrram.com, postmaster@gulftsream.com, postmaster@gulgstream.com, postmaster@gulfstreamm.com, postmaster@gulfsrream.com, postmaster@gulfstteam.com, postmaster@gulfsteeam.com, postmaster@guulfstream.com, postmaster@gulffstream.com, postmaster@glufstream.com, postmaster@gulsftream.com, postmaster@gulfdtream.com, postmaster@gulfstrream.com, postmaster@gulfstrwam.com, postmaster@gulfstrema.com, postmaster@ggulfstream.com. Also on November 28, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 27, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement relating to the disputed domain names is written in the Chinese language, thereby making the language of the proceedings to be Chinese.
However, the Panel has a discretion under UDRP Rule 11(a) to determine that a different and more appropriate language should be the language of the proceeding, taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant has submitted that because Respondent is conversant and proficient in English, the proceeding should be conducted in the English language. Complainant contends that Respondent’s websites available at the disputed domain names being entirely in English, the WHOIS information available for the domain names, and the typosquatting of Complainant’s English language marks all suggest that Respondent is at least proficient in the English language. Furthermore, Complainant is not conversant nor proficient in the Chinese language and it would require delay and unnecessary costs to translate the documents into Chinese if the proceeding were conducted in that language.
Accordingly, pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to show that Respondent is conversant and proficient in the English language. After considering all of the circumstance of the present case, the Panel decides that the proceeding should be conducted in English. The matter may therefore go forward on that basis.
A. Complainant
Complainant made the following contentions.
Complainant, Gulfstream Aerospace Corporation, is an aircraft company. Complainant submits that it has rights in the GULFSTREAM mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,162,644, registered July 28, 1981) and other trademark agencies. See Compl. Ex. 3. Respondent’s <gulfsrteam.com>, <gulfsstream.com>, <gulfatream.com>, <gulfsyream.com>, <gulfstrean.com>, <gulfstresm.com>, <gulfstraem.com>, <gylfstream.com>, <gulfstrram.com>, <gulftsream.com>, <gulgstream.com>, <gulfstreamm.com>, <gulfsrream.com>, <gulfstteam.com>, <gulfsteeam.com>, <guulfstream.com>, <gulffstream.com>, <glufstream.com>, <gulsftream.com>, <gulfdtream.com>, <gulfstrream.com>, <gulfstrwam.com>, <gulfstrema.com>, and <ggulfstream.com> domain names (hereinafter referred to as “Disputed Domain Names”) are confusingly similar to Complainant’s mark because they contain misspellings of the GULFSTREAM mark, adding or replacing letters and appending the generic top-level domain (“gTLD”) “.com” to form the disputed domain names.
Respondent does not have rights or legitimate interests in the Disputed Domain Names. Respondent is not licensed or authorized to use Complainant’s GULFSTREAM mark and is not commonly known by the disputed domain names. Additionally, Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the Disputed Domain Names to host pay-per-click links and advertisements for competing products and services. Furthermore, Respondent has engaged in typosquatting.
Respondent registered and uses the Disputed Domain Names in bad faith. Respondent registered 24 different domain names on the same day, each containing a misspelling of Complainant’s mark. Additionally, Respondent uses the Disputed Domain Names to host pay-per-click links for commercial gain. Finally, Respondent registered the Disputed Domain Names with actual knowledge of Complainant’s rights in a famous mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company engaged in the aircraft industry and the provision of related goods and services.
2. Complainant has established its rights in the GULFSTREAM mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,162,644, registered July 28, 1981) and other trademark agencies.
3. Respondent registered the Disputed Domain Names on October 27, 2022.
4. Respondent has used the Disputed Domain Names to host pay-per-click links and advertisements for competing products and services and has engaged in typosquatting.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the GULFSTREAM mark based upon registration of the mark with the USPTO (e.g., Reg. No. 1,162,644, registered July 28, 1981) and other trademark agencies. See Compl. Ex. 3. Registration of a mark with multiple trademark agencies worldwide is considered a valid showing of rights under Policy ¶ 4(a)(i). See Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“Registering a mark with multiple trademark agencies around the world is sufficient to establish rights in a mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant has provided evidence of registration of the GULFSTREAM mark with the USPTO and other agencies, the Panel finds that Complainant has established its rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s Gulfstream mark. Complainant contends that Respondent’s Disputed Domain Names are confusingly similar to Complainant’s GULFSTREAM mark. Adding or replacing letters and appending a gTLD to a mark does not distinguish a disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”); see also Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017) (“The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.”). The Disputed Domain Names incorporate misspellings of the GULFSTREAM mark, adding or replacing letters and appending the gTLD “.com”. Therefore, the Panel finds that the Disputed Domain Names are confusingly similar to the GULFSTREAM mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s GULFSTREAM mark and to use it in its domain names making various misspellings of the mark which do not negate a finding of confusing similarity;
(b) Respondent registered the domain names on October 27, 2022;
(c) Respondent has used the domain names to host pay-per-click links and advertisements for competing products and services and has engaged in typosquatting;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have rights or legitimate interests in the Disputed Domain Names because Respondent is not licensed or authorized to use Complainant’s GULFSTREAM mark and is not commonly known by the disputed domain names. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain names. 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). The WHOIS information for the disputed domain names lists the registrant as “YangZhiChao.” See Registrar Verification Email. Therefore, the Panel finds Respondent is not commonly known by the Disputed Domain Names per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the Disputed Domain Names to host pay-per-click links and advertisements for competing products and services. Using a disputed domain name to offer links to a complainant’s competitors is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Here, Complainant has provided screenshots of the disputed domain names’ resolving pages, displaying the aforementioned links to competing aircraft products and services. See Compl. Ex. 6. Therefore, the Panel finds Respondent does not use the Disputed Domain Names for any bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii);
(g) Complainant submits that Respondent has engaged in the practice of typosquatting. Typosquatting may be evidence that a respondent lacks rights or legitimate interests under Policy ¶ 4(a)(iii). See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Thus, as the Panel finds Respondent has engaged in typosquatting, it finds Respondent lacks rights or legitimate interests in the Disputed Domain Names under Policy ¶ 4(a)(iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the Disputed Domain Names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the Disputed Domain Names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the Disputed Domain Names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the Disputed Domain Names in bad faith because Respondent registered 24 different domain names on the same day, each containing a misspelling of Complainant’s mark. Such conduct shows a pattern of bad faith registration under Policy ¶ 4(b)(ii). See Deutsche Telekom AG v. Dana Dudones, FA 1798440 (Forum Sep. 7, 2018) (“Here the same registrant registered the seven disputed domain names over a two-day period [. . .] Thus the Panel finds that Respondent’s registration of multiple domain names in the present case evinces bad faith registration under Policy ¶ 4(b)(ii).”); see also United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (“Complainant contends that Respondent is a serial cybersquatter as evidenced by its registering four separate domain names all incorporating Complainant’s USPS mark. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(ii).”). Here, Complainant has provided the WHOIS information for each of the domain names which shows the same-day registration. See Compl. Ex. 2. As such, the Panel finds bad faith registration pursuant to Policy ¶ 4(b)(ii).
Secondly, Complainant submits that Respondent uses the Disputed Domain Names to host pay-per-click links for commercial gain. Using a disputed domain name to create confusion and seek commercial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See 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)). The Panel recalls the screenshots provided by Complainant which display Respondent’s use of pay-per-click links at the resolving webpages. See Compl. Ex. 6. Thus, as the Panel agrees, it finds Respondent registered and uses the Disputed Domain Names in bad faith.
Thirdly, Complainant contends that Respondent registered the Disputed Domain Names with actual knowledge of Complainant’s rights in a famous mark. Actual knowledge can show bad faith registration under Policy ¶ 4(a)(iii). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”); see also AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). To support this contention, Complainant points to Respondent’s intentional typosquatting, pay-per-click advertisements for competing services, and unauthorized use of Complainant’s marks. See Compl. Pgs. 8-9. As such, as the Panel finds Respondent had actual knowledge of Complainant’s rights in its mark at the time of registration and that this supports a finding of bad faith under Policy ¶ 4(a)(iii) which the Panel now makes.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gulfsrteam.com>, <gulfsstream.com>, <gulfatream.com>, <gulfsyream.com>, <gulfstrean.com>, <gulfstresm.com>, <gulfstraem.com>, <gylfstream.com>, <gulfstrram.com>, <gulftsream.com>, <gulgstream.com>, <gulfstreamm.com>, <gulfsrream.com>, <gulfstteam.com>, <gulfsteeam.com>, <guulfstream.com>, <gulffstream.com>, <glufstream.com>, <gulsftream.com>, <gulfdtream.com>, <gulfstrream.com>, <gulfstrwam.com>, <gulfstrema.com>, and <ggulfstream.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: December 27, 2022
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