ADP, LLC v. Zhichao Yang
Claim Number: FA1708001744546
Complainant is ADP, LLC ("Complainant"), represented by Susan E. Hollander of Venable LLP, California, USA. Respondent is Zhichao Yang ("Respondent"), People's Republic of China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myaccesadp.com>, registered with NameSilo, LLC.
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 August 14, 2017; the Forum received payment on August 14, 2017.
On August 16, 2017, NameSilo, LLC confirmed by email to the Forum that the <myaccesadp.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC 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 August 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 2017 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@myaccesadp.com. Also on August 16, 2017, 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 September 8, 2017, 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 one of the world’s largest providers of business outsourcing solutions, with 650,000 clients in more than 110 countries, and annual revenue of approximately US $11 billion. Complainant and its predecessors in interest have used ADP and related marks in connection with a variety of products and services in its field since at least as early as 1977. Since at least as early as 2008, Complainant has used ADP ACCESS in connection with financial records management services. Complainant and its parent company own U.S. trademark registrations for ADP and ADP ACCESS, in both instances including registrations in the form of standard character marks. Complainant also owns registrations for ADP and related marks in many other jurisdictions, including China, and claims common law rights in ADP and ADP ACCESS arising from Complainant’s widespread use and promotion of these marks. Complainant uses the domain name <adp.com> and various subdomains, including <my.adp.com> and <myaccess.adp.com>.
The disputed domain name <myaccesadp.com> was registered through a privacy registration service in August 2015. The privacy shield was lifted by the registrar upon being notified of this proceeding, thereby revealing Respondent’s identity. The domain name resolves to a web page comprised of sponsored advertising links, most of which incorporate “ADP.” Complainant states that Respondent is not commonly known by the domain name and is neither using the domain name in connection with a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the domain name. Complainant contends on these grounds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent has no 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The disputed domain name incorporates Complainant's ADP mark and (inverting the words and omitting the final “s” from “access”) its ADP ACCESS mark. The domain name prefixes the marks with the generic term “my” and adds the “.com” top-level domain. These modifications do not substantially diminish the similarity between the domain name and Complainant’s marks. See, e.g., ADP, LLC v. WhoIs Agent, Domain Protection Services, Inc. / Sajid Mehmood, sajid, D2017-0462 (WIPO May 7, 2017) (finding <mycardadp.org> confusingly similar to ADP); SAP SE v. Lakshmi Reddy Bhumireddy & P. Hareesh, D2017-0396 (WIPO Apr. 18, 2017) (finding <saponlineaccess.com> and <sapremoteaccess.com> confusingly similar to SAP). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
The disputed domain name incorporates Complainant's marks without authorization. Its only apparent use has been for a website comprised of pay-per-click links, most of which relate to Complainant or its industry. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., State Farm Mutual Automobile Insurance Co. v. Tulip Co. / Tulip Trading Co., FA 1681653 (Forum Aug. 2, 2016); Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, FA 1670787 (Forum May 24, 2016).
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 names were registered and have been 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's registration of a domain name that incorporate Complainant's well-known marks (and that mimics Complainant’s <myaccess.adp.com> subdomain), together the use of the domain name to generate revenues from pay-per-click advertisements, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., State Farm Mutual Automobile Insurance Co. v. Tulip Co. / Tulip Trading Co., supra; Altria Group, Inc. & Altria Group Distribution Co. v. Zhichao Yang, supra.
The Panel notes that several previous panels have found Respondent to be a “serial cybersquatter” or to have engaged in a pattern of bad faith registrations. See, e.g., Confederation Nationale du Credit Mutuel v. Privacydotlink Customer 2535445 / Zhichao Yang, D2016-2439 (WIPO Jan. 23, 2017); Kabbage, Inc. v. Zhichao Yang, FA 1624159 (WIPO July 28, 2015); Comerica Inc. v. Zhichao Yang / Whois Privacy Protection Service, Inc., Whois Agent, D2013-1184 (WIPO Sept. 11, 2013); Brooks Brothers Group, Inc. v. Zhichao Yang, FA 1488737 (Forum Apr. 10, 2013). Respondent’s choice of a domain name that corresponds closely to the <myaccess.adp.com> subdomain used by Complainant, and his use of a privacy registration service to conceal his identity, lend further support to the inference of bad faith.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <myaccesadp.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 12, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page