Generali Global Assistance, Inc. v. Zhi Chao Yang
Claim Number: FA2202001986210
Complainant is Generali Global Assistance, Inc. (“Complainant”), represented by Yuo-Fong C. Amato of Gordon & Rees, LLP, California, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <generaliglobalassistanc.com>, registered with Chengdu West Dimension Digital Technology 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 28, 2022; the Forum received payment on February 28, 2022. The Complaint was received in both Chinese and English.
On March 3, 2022, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <generaliglobalassistanc.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology 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 8, 2022, the Forum served the Chinese language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of March 28, 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@generaliglobalassistanc.com. Also on March 8, 2022, 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 April 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
The Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant, Generali Global Assistance, Inc., provides various services within the financial industry, including insurance, banking and investment services. Complainant has rights in the GENERALI GLOBAL ASSISTANCE mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 6,337,564, registered May 04, 2021). The <generaliglobalassistanc.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark merely removing the last letter “e” found in Complainant’s mark.
Respondent does not have rights or legitimate interests in the <generaliglobalassistanc.com> domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s GENERALI GLOBAL ASSISTANCE mark. Additionally, Respondent lacks rights or legitimate interests in the disputed domain name because the domain resolves to a parked page. Finally, Respondent has engaged in typosquatting and may be using malicious software on its webpage.
Respondent registered and uses the <generaliglobalassistanc.com> domain name in bad faith. Respondent engages in typosquatting, may be using the domain in connection with malicious software, and concealed its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Generali Global Assistance, Inc., provides various services within the financial industry, including insurance, banking and investment services. Complainant has rights in the GENERALI GLOBAL ASSISTANCE mark based upon registration with the USPTO (e.g., 6,337,564, registered May 04, 2021). The <generaliglobalassistanc.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark merely removing the last letter “e” found in Complainant’s mark.
Respondent registered the <generaliglobalassistanc.com> domain name on February 16, 2022.
Respondent does not have rights or legitimate interests in the <generaliglobalassistanc.com> domain. The disputed domain name resolves to a parked page and Respondent engaged in typosquatting.
Respondent registered and uses the <generaliglobalassistanc.com> domain name in bad faith. The disputed domain name resolves to a parked page, Respondent engaged in typosquatting, and Respondent concealed its identity through the use of a privacy service.
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 has rights in the GENERALI GLOBAL ASSISTANCE mark under Policy ¶ 4(a)(i) based on registration with the USPTO. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <generaliglobalassistanc.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark with a slight misspelling.
Respondent does not have rights or legitimate interests in the <generaliglobalassistanc.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s GENERALI GLOBAL ASSISTANCE mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy 4 ¶ (c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, there is no evidence available in the WHOIS information to suggest that Respondent is known by <generaliglobalassistanc.com> domain name and no information suggests Complainant authorized Respondent to use the GENERALI GLOBAL ASSISTANCE mark. Rather, the Registrar has verified that the registrant of the domain is “Zhi Chao Yang.” Therefore, Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent does not use the <generaliglobalassistanc.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii), because the domain resolves to a parked webpage. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Here, Complainant provides screenshots showing Respondent’s resolving webpage hosts rotating parked links.
Respondent lacks rights and legitimate interests in the <generaliglobalassistanc.com> domain name under Policy ¶ 4(a)(ii) because Respondent engages in typosquatting. Typosquatting, or capitalizing on slight misspellings between the disputed domain name and a mark or a Complainant’s actual domain name, may be evidence that the respondent lacks rights or legitimates 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).”). Here, Respondent has incorporated Complainant’s entire mark with the last letter “e” dropped from the end of the mark, potentially taking advantage of internet users who may attempt to reach Complainant’s domain.
However, without supporting evidence, Complainant’s belief that Respondent’s webpage is related to malicious software is insufficient to show a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(a)(iii) because the domain resolves to a parked webpage. See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc., FA 1532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”).
Complainant contends that Respondent has registered and uses the disputed domain in bad faith because it has concealed its identity which may be evidence of bad faith. The consensus view amongst panels is that use of a privacy service, without more, cannot reach the threshold of bad faith registration and use. See WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, D2006-0975 (WIPO November 1, 2006) (finding use of proxy registration service does not of itself indicate bad faith; there are many legitimate reasons for proxy registration services); see also Divex Limited v. ZJ, Sam Chang and Tim NG, D2007-0861 (WIPO September 21, 2007) (finding privacy services may be justified by the need to avoid spam and identity theft).
However, the totality of the circumstances which surround a respondent’s engagement of a privacy service may give rise to a finding of bad faith registration and use. See, e.g., HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, D2007-0062 (WIPO June 4, 2007) (finding a change of privacy service after notice of complaint indicative of bad faith); see also Sermo, Inc. v. CatalystMD, LLC, D2008-0647 (WIPO July 2, 2008) (stating that use of privacy shield can be “treated as evidence of bad faith . . . when serial registrants use privacy shields to mask each registrant’s actual date of registration”). Here, Respondent has parked the domain and has engaged in typosquatting, thereby, using the privacy shield in a manner which materially adversely affects or obscures the facts of this proceeding. Therefore, Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <generaliglobalassistanc.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 19, 2022
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