Securian Financial Group, Inc. v. 权中俊 / Zhichao Yang
Claim Number: FA2010001916039
Complainant is Securian Financial Group, Inc. (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, United States. Respondent is 权中俊 / Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd.; Zhengzhou Century Connect Electronic Technology Development 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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2020; the Forum received payment on October 6, 2020.
On October 10, 2020; October 17, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd.; Zhengzhou Century Connect Electronic Technology Development Co., Ltd confirmed by e-mail to the Forum that the <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names are registered with Alibaba Cloud Computing (Beijing) Co., Ltd.; Zhengzhou Century Connect Electronic Technology Development Co., Ltd and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd.; Zhengzhou Century Connect Electronic Technology Development Co., Ltd has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd.; Zhengzhou Century Connect Electronic Technology Development 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 October 21, 2020, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of November 10, 2020 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@securiann.com, postmaster@sevurian.com, postmaster@sexurian.com, postmaster@securinretirementcenter.com, postmaster@securianreitrementcenter.com, postmaster@securanretirementcenter.com. Also on October 21, 2020, 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 November 12, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Complainant did not submit a Chinese Language complaint, but argues that because the disputed domain names are all written in English, and the resolving websites are in English, the Panel should proceed in English. 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that the registrant of the <securiann.com>, <sevurian.com>, and <sexurian.com> domain names is the same registrant of the <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names, as all of the resolving websites feature the same or similar hyperlinks, each domain name features typographical errors of the incorporated mark or typographical errors of descriptive words added to the mark, and all used the same name servers. The Panel agrees, and will treat these entities as one Respondent.
A. Complainant
Complainant offers financial and banking services throughout the U.S. Complainant has rights in the SECURIAN mark through its registration with the United States Patent and Tradermark Office (“USPTO”). Respondents’ <securiann.com>,<sevurian.com>,<sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names are identical or confusingly similar to Complainant’s mark as they incorporate the mark or misspelled versions of the mark, along with descriptive and/or misspelled terms.
Respondent lacks rights and legitimate interests in the disputed domain names. Respondent is not commonly known by any of the disputed domain names, nor has Complainant authorized or licensed Respondent to use its SECURIAN mark in the disputed domain names. Respondent does not use the disputed domain names for any bona fide offerings of goods or services, nor any legitimate noncommercial or fair use, but instead hosts competing pay-per-click links on the disputed domain name’s resolving website.
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 had actual knowledge of Complainant’s rights in the SECURIAN mark at the time of registration. Respondent typosquats with the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <securiann.com>, <sevurian.com>, <sexurian.com> domain names were registered on Aug. 27, 2020, and the <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names were registered on Sep. 13, 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 SECURIAN mark through its registration with the USPTO. (e.g. Reg. 2,637,008, registered Oct. 15, 2002). Registration with the USPTO is generally sufficient to demonstrate rights in a mark under Policy
¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Since Complainant provides evidence of registration with the USPTO, the Panel finds that Respondent has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues Respondent’s <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names are identical or confusingly similar to Complainant’s SECURIAN mark, as they incorporate either misspelled versions of the mark, and/or add misspelled descriptive words that relate to Complainant’s business. Misspelling a mark or added descriptive words by adding, removing, transposing, or replacing letters is generally insufficient to differentiate a disputed domain name from the mark it incorporates under Policy ¶ 4(a)(i). See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”) The disputed domain names incorporate the SECURIAN mark in its entirety, or incorporate misspelled versions of the SECURIAN mark by adding, removing, transposing, or swapping out letters with in the mark. Some of the disputed domain names also add the descriptive words “retirement center”, or misspelled versions of those words. Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent is not commonly known by the <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names, nor has Complainant authorized or licensed Respondent to use its SECURIAN mark in the disputed domain names. Where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1574905 (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 WHOIS information of record identifies the domain name registrant as “Zhichao Yang” and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its SECURIAN mark in the disputed domain names. Therefore, the Panel 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. Using a disputed domain name to resolve
to a website with competing pay-per-click links is generally not considered a bona
fide offering of goods or services, nor a legitimate noncommercial or fair
use under Policy ¶¶ 4(c)(i) or (iii). See Provide Commerce, Inc. v. e on
Craze,
FA1626318 (Forum Aug. 11, 2015)
(holding that the respondent was not making a bona fide offering of
goods or services, or a legitimate noncommercial or fair use of the disputed
domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was
using the disputed domain name to host generic links to third-party websites,
some of which directly competed with the complainant’s business). Complainant
provides screenshots of the disputed domain names’ resolving websites, which
feature advertisements for various life and medical insurance services. The Panel
agrees, and finds that Respondent does not use the disputed domain names for
any bona fide offering of goods or services, nor any legitimate
noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names for bad faith disruption for commercial gain. Hosting competing pay-per-click hyperlinks on a disputed domain name’s resolving website may demonstrate bad faith disruption for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). 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 notes that Complainant submitted screenshots of the disputed domain names’ resolving websites, which feature pay-per-click links to competing insurance and financial services. The Panel therefore finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent registered the disputed domain names in bad faith, as it had actual knowledge of Complainant’s rights in the SECURIAN mark at the time of registration. Actual knowledge is generally sufficient in demonstrating bad faith under Policy ¶ 4(a)(iii), and may be demonstrated by Respondent incorporating the mark into the domain names, and Respondent’s use of the domain names. The disputed domain names incorporate the SECURIAN mark or misspellings thereof, in its entirety, and host competing insurance advertisements on the disputed domain names’ resolving website. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
Additionally, Complainant argues that Respondent’s registration of the disputed domain names constitutes typosquatting. Misspelling a mark or words within a disputed domain name with the goal of redirecting internet users who inadvertently misspell a domain name is considered bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. IS / ICS INC, FA 1683305 (Forum Aug. 11, 2016) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name. The conniving registrant wishes and hopes that Internet users will inadvertently type the malformed trademark or read the domain name and believe it is legitimately associated with the target trademark. In doing so, wayward Internet users are fraudulently directed to a web presence controlled by the confusingly similar domain name’s registrant.”). The Panel notes that the disputed domain names all misspell the incorporated SECURIAN mark and/or the additional generic words. Therefore, the Panel finds that Respondent typosquats in bad faith under Policy ¶ 4(a)(iii).
Therefore, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <securiann.com>, <sevurian.com>, <sexurian.com>, <securinretirementcenter.com>, <securianreitrementcenter.com>, and <securanretirementcenter.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: November 25, 2020
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