Transamerica Corporation v. Zhichao Yang
Claim Number: FA2102001932605
Complainant is Transamerica Corporation ("Complainant"), represented by Gail Podolsky of Carlton Fields, P.A. Georgia, USA. Respondent is Zhichao Yang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <securetransamerican.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 18, 2021; the Forum received payment on February 18, 2021.
On February 19, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by email to the Forum that the <securetransamerican.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 February 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@securetransamerican.com. Also on February 22, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 March 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a holding company for a group of companies engaged in the sale of life insurance, investment planning, and retirement services. Complainant's largest subsidiary had more than $1 trillion of insurance in force at the end of 2016. Complainant has used the TRANSAMERICA mark since 1929, and states that its companies spend millions of dollars every year to advertise and promote the mark. Complainant owns numerous U.S. trademark registrations for TRANSAMERICA, both standing alone and in combination with other terms.
The disputed domain name <securetransamerican.com> was registered through a privacy registration service in September 2020. The domain name is being used for a website consisting of links to third-party websites, including sites related to insurance, investments, and related services. Complainant states that Respondent is not commonly known by the TRANSAMERICA mark and has not been authorized to use the mark.
Complainant contends on the above grounds that the disputed domain name <securetransamerican.com> is confusingly similar to its TRANSAMERICA mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, noting inter alia that the content of Respondent's website, including its privacy policy, is exclusively in English. (The Panel has confirmed that this is the case even when the site is accessed through proxies located in Beijing and Hong Kong.) In addition, the Panel notes that the domain name is composed of English-language words and corresponds to the name of a U.S. company; that the Written Notice of the Complaint was served upon Respondent in both English and Chinese, and Respondent has made no objection to Complainant's request that the proceeding be conducted in English; that Respondent has been a party to many proceedings under the Policy, most or all of which have been conducted in English, and has been found likely to be conversant and proficient in the English language, see, e.g., LoanDepot.com, LLC v. Zhichao Yang, FA 1924673 (Forum July 24, 2020); and that Respondent has registered many other domain names composed of English-language words and has done so through registrars with English-language registration agreements, One Technologies, L.P. v. Zhichao Yang, FA 1554290 (Forum June 10, 2014) (78 domain names registered with 5 registrars).
Under the circumstances, the Panel finds it likely that Respondent is conversant in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require Complainant to bear the burden and expense of arranging for a Chinese translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is likely to ignore. See LoanDepot.com, LLC v. Zhichao Yang, supra (deciding to conduct proceeding in English in similar circumstances). The Panel decides that English shall be the language of this proceeding.
The disputed domain name <securetransamerican.com> incorporates Complainant's registered TRANSAMERICA trademark, adding the generic term "secure," a letter "N," and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Transamerica Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1850350 (Forum Aug. 8, 2019) (finding <securetransamerica.com> confusingly similar to TRANSAMERICA); Transamerica Corp. v. yangzhichao, FA 1775991 (Forum Apr. 27, 2018) (finding <transamericandirect.com> confusingly similar to TRANSAMERICA); Transamerica Corp. v. Zhichao Yang, FA 1748097 (Forum Oct. 5, 2017) (finding <transamericanannuities.com> confusingly similar to TRANSAMERICA). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for the sole apparent purpose of displaying pay-per-click links to third party websites, some of which compete with Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Transamerica Corp. v. Zhichao Yang, FA 1923347 (Forum Dec. 30, 2020) (finding lack of rights or interests in similar circumstances); Transamerica Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1850350, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's mark and is using it to display links to competing services, presumably for Respondent's commercial gain. Respondent's actions are indicative of bad faith registration and use under the provisions of the Policy cited above. See, e.g., Transamerica Corp. v. Zhichao Yang, FA 1923347, supra (finding lack of rights or interests in similar circumstances); Transamerica Corp. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1850350, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <securetransamerican.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 17, 2021
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