Dealerrater.com LLC v. Zhichao Yang
Claim Number: FA2102001933623
Complainant is Dealerrater.com LLC (“Complainant”), represented by Thad Chaloemtiarana of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2021; the Forum received payment on February 25, 2021.
On March 1, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.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 March 10, 2021, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of March 30, 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@deakerrater.com, postmaster@ddealerrater.com, postmaster@deaierrater.com, postmaster@dealerraterr.com, postmaster@dealerratewr.com, postmaster@dealerraater.com, postmaster@deaerrater.com, postmaster@deallerrater.com, postmaster@dealerrarter.com, postmaster@dealerratar.com, postmaster@dealerarter.com, postmaster@deelerrater.com, postmaster@dealertater.com. Also, on March 10, 2021, the Chinese 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 April 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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: REQUIRED LANGUAGE OF COMPLAINT
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. 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). Pursuant to Rule 11(a), the Panel here determines that the language requirement has been satisfied through the Chinese language Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant provides online car dealership rating services. Complainant has rights in the DEALERRATER mark through its registrations with numerous trademark agencies throughout the world (e.g. Canadian Intellectual Property Office (“CIPO”) Reg. TMA972,843, registered Jun. 7, 2017; European Union Intellectual Property Office (“EUIPO”) Reg. 1,263,501, registered Jul. 22, 2015). Respondent’s <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.com> domain names (hereinafter “the disputed domain names”) are confusingly similar to Complainant’s mark as they include a slightly misspelled version of Complainant’s mark and add the “.com” generic top-level domain (“gTLD”) to the end of the mark.
Respondent lacks rights and legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its DEALERRATER mark in the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts competing pay-per-click links on the disputed domain names’ resolving websites. Respondent typosquats with the disputed domain names.
Respondent registered and uses the disputed domain names in bad faith. Respondent disrupts Complainant’s business for commercial gain by hosting competing pay-per-click links on the disputed domain names’ resolving websites. Respondent registered the disputed domain names with knowledge of Complainant’s rights in the DEALERRATER mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Dealerrater.com LLC (“Complainant”), of Waltham, MA, USA. Complainant is the owner of domestic and global registrations for its mark DEALERRATER which it has continuously used since at least 2002, in connection with its provision of car dealership and service center ratings for consumers interested in securing information for those services located throughout the USA and Canada. Complainant is also the owner of numerous websites whose addresses incorporate the DEALERRATER trademark including <dealerrater.com> which it has operated since Complainant’s inception.
Respondent is Zhichao Yang (“Respondent”), of Anhui, China. Respondent’s registrar’s address is listed as Beijing, China. The Panel notes that the <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.com> domain names were registered on or about July 23, 2020.
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 claims rights in the DEALERRATER mark through its registrations with numerous trademark agencies throughout the world (e.g. CIPO Reg. TMA972,843, registered Jun. 7, 2017; EUIPO Reg. 1,263,501, registered Jul. 22, 2015). Registration with numerous trademark agencies is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Astute, Inc. v. Raviprasath C / Astute Solution Pvt Ltd, FA 1546283 (Forum Apr. 9, 2014) (finding that registrations with two major trademark agencies is evidence enough of Policy ¶ 4(a)(i) rights in the ASTUTE SOLUTIONS mark.). The Panel here finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.com> domain names (hereinafter “the disputed domain names” are confusingly similar to Complainant’s DEALERRATER mark. Incorporating various slight misspellings of Complainant’s mark and adding the “.com” gTLD to the end may render a disputed domain name confusingly similar to the mark it incorporates or mimics under Policy ¶ 4(a)(i). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”); see also Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). Here, the disputed domain names all incorporate different misspellings of Complainant’s DEALERRATER mark by adding letters, removing letters, or replacing letters in the mark and adding the “.com” gTLD to the end of the mark. The Panel here finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes 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 here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its DEALERRATER mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name, while lack of evidence may demonstrate that the Respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). The WHOIS of record identifies Respondent as “Zhichao Yang”, and nothing in the record rebuts Complainant’s assertions that it never authorized Complainant to use its DEALERRATER mark in the disputed domain name. The Panel here finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host parked pay-per-click links that compete with Complainant’s services is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Expedia, Inc. v. Compaid, FA 520654 (Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Complainant provides screenshots of the disputed domain names’ resolving websites, which feature various parked pay-per-click links for various car related services. The Panel here finds that Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant argues that Respondent further lacks rights and legitimate interests in the disputed domain names by typosquatting with the disputed domain names. Typosquatting, or registering domain names that incorporate slight misspellings of a mark to divert internet users who mistype a mark may demonstrate a lack of rights and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”). The Panel again notes that the disputed domain names appear to incorporate Complainant’s DEALERRATER mark with slight misspellings. The Panel here finds that Respondent lacks rights and legitimate interests in the disputed domain names through typosquatting.
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and uses the disputed domain names in bad faith by disrupting Complainant’s business for commercial gain. Under Policy ¶¶ 4(b)(iii) and (iv), using a disputed domain name to host competing pay-per-click links may demonstrate bad faith disruption for commercial gain. See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). The Panel again notes that Complainant’s screenshots of the disputed domain names’ resolving websites, feature various pay-per-click links to car related websites. The Panel here finds that Respondent registered and uses the disputed domain names for bad faith disruption for commercial gain under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent registered the disputed domain names in bad faith by typosquatting. Typosquatting is generally considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). The Panel again notes that the disputed domain names all appear to be slight misspellings of Complainant’s DEALERRATER mark. The Panel here finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <deakerrater.com>, <ddealerrater.com>, <deaierrater.com>, <dealerraterr.com>, <dealerratewr.com>, <dealerraater.com>, <deaerrater.com>, <deallerrater.com>, <dealerrarter.com>, <dealerratar.com>, <dealerarter.com>, <deelerrater.com>, and <dealertater.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 20, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page