Country Mutual Insurance Company and Country Life Insurance Company v. Zhichao Yang
Claim Number: FA2012001926301
Complainant is Country Mutual Insurance Company and Country Life Insurance Company (“Complainant”), represented by Liz Brodzinski of Banner & Witcoff, Ltd., Illinois, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <countryfinancail.com>, <vountryfinancial.com>, and <coutnryfinancial.com>, (‘the Domain Names’) registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 24, 2020; the Forum received payment on December 24, 2020. The Complainant was received in English.
On December 29, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <countryfinancail.com>, <vountryfinancial.com>, and <coutnryfinancial.com> domain names are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. 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 January 4, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of January 25, 2021 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@countryfinancail.com, postmaster@vountryfinancial.com, postmaster@coutnryfinancial.com. Also on January 4, 2021, 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 January 28, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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: MULTIPLE COMPLAINANTS
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint”. In this case both Complainant’s own trademarks for COUNTRY FINANCIAL in the USA for financial services. As such the Panel finds that they are both entities with a sufficient nexus who can each claim to have rights to all the domain names listed in the Complaint.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
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 summarized as follows:
The Complainant is the owner of the mark COUNTRY FINANCIAL, registered, inter alia, in the USA for insurance and financial services with first use recorded as 2008.
The Domain Names registered in 2020 are confusingly similar to the Complainant’s trade mark. Each of the Domain Names fully incorporates an intentional misspelling of Complainant’s COUNTRY Marks (<countryfinancail.com>; <vountryfinancial.com>; <coutnryfinancial.com>), which is alone sufficient to support a finding that the Domain Names are confusingly similar to Complainant’s COUNTRY Marks for purposes of the Policy. The addition of the “.com” gTLD signifier does not alter this conclusion.
The Respondent does not have any rights or legitimate interests in the Domain Names, is not commonly known by them and is not authorized by the Complainant.
The Domain Names do not currently resolve to active web sites and have been used for pay per click links in the past. <countryfinancail.com> has been used for phishing. These uses are not a bona fide offering of goods or services or a legitimate noncommercial or fair use. They are registration and use in bad faith in actual knowledge of the Complainant and its rights. Typosquatting is bad faith per se. The Respondent has been the subject of many adverse decisions under the UDRP in typosquatting cases.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark COUNTRY FINANCIAL, registered, inter alia, in the USA for insurance and financial services with first use recorded as 2008.
The Domain Names registered in 2020 do not currently resolve to active web sites. <countryfinancail.com> has been used for phishing activity. The Respondent has been the subject of many adverse decisions in cases under the UDRP.
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 Names each consist of a misspelling of the Complainant's COUNTRY FINANCIAL mark (which is registered in USA for insurance and financial services with first use recorded as 2008) and the gTLD “.com”.
The Panel agrees that transposing one letter with another, such as the letter ‘a’ with an ‘i’ or the letter ‘n’ with a letter ‘t’ or the substitution of a letter such as a letter ‘c’ with the letter ‘v’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“The .. Domain Names are confusingly similar to Complainant’s marks, as they fully incorporate the …mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain (“gTLD”) ‘.com.’”).
The gTLD “.com” does not serve to distinguish a Domain Name from a 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 Names are each confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the 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 Panel notes the assertion that the Domain Names have been used for pay per click links in the past, but there has been no evidence of that presented in this Complaint.
The Domain Names do not currently resolve to any active web sites. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).). Nor has there been any non-commercial legitimate or fair use made of the Domain Names.
Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
<countryfinancail.com> has been used in a phishing attempt. The use of a disputed domain name to engage in phishing and the failure to make active use of a disputed domain name do not constitute a bona fide offering of goods or services or legitimate non-commercial or fair use under Policy 4(c)(i) or (iii). See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate non-commercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretences. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”);
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register domain names containing a sign confusingly similar to the Complainant’s mark which is recognised for insurance and financial services.
The Domain Names seek 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 and disruption of the Complainant’s business. 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). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
The Domain Names do not currently resolve to active web sites. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
<countryfinancail.com> has been used in a phishing attempt. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
The Respondent has been the subject of many adverse rulings in typosquatting cases under the UDRP. A respondent who has registered multiple infringing domains in a current case or has a history of past UDRP rulings against it engages in a pattern of bad faith registration under Policy ¶ 4(b)(ii). See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA1405001558045 (Forum July 10, 2014) (finding that the respondent’s registration of multiple domain names in the instant proceeding and prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <countryfinancail.com>, <vountryfinancial.com>, and <coutnryfinancial.com> domain names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 29, 2021
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