Acrisure, LLC v. Zhi Chao Yang
Claim Number: FA2301002028438
Complainant is Acrisure, LLC (“Complainant”), represented by Leonard Searcy of Shook, Hardy & Bacon LLP, USA. Respondent is Zhi Chao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <acisure.com>, <acrissure.com>, <acrsure.com>, and <acruisure.com> (‘the Domain Names’), registered with Chengdu West Dimension Digital Technology Co., Ltd.; Cloud Yuqu LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on January 20, 2023; Forum received payment on January 20, 2023.
On January 28, 2023, Chengdu West Dimension Digital Technology Co., Ltd.; Cloud Yuqu LLC confirmed by e-mail to Forum that the <acisure.com>, <acrissure.com>, <acrsure.com>, and <acruisure.com> Domain Names are registered with Chengdu West Dimension Digital Technology Co., Ltd.; Cloud Yuqu LLC and that Respondent is the current registrant of the names. Chengdu West Dimension Digital Technology Co., Ltd.; Cloud Yuqu LLC has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd.; Cloud Yuqu 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 February 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2023 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@acisure.com, postmaster@acrissure.com, postmaster@acrsure.com, postmaster@acruisure.com. Also on February 1, 2023, the 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, Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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: LANGUAGE OF PROCEEDING
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark ACRISURE, registered, inter alia, in the USA for insurance services since 2009.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s mark all consisting of a misspelling of the Complainant’s mark and the gTLD .com.
Respondent is not commonly known by the Domain Names and has not been authorised by the Complainant to use the Complainant’s mark. The Domain Names are typosquatting registrations that have been used to point to competing commercial pay per click links, which is not a bona fide offering of goods or services or a non commercial legitimate fair use.
Respondent has used confusingly similar domain names in opportunistic bad faith to resolve to confusing pay per click links offering competing services causing disruption to the Complainant’s business. Typosquatting is bad faith per se. The Respondent is a serial cybersquatter who has been the subject of many adverse decisions under the Policy showing an extensive pattern of bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark ACRISURE, registered, inter alia, in the USA for insurance services since 2009.
The Domain Names registered in 2022 have been used to point to pay per click links to competing services to those of the Complainant. The Respondent has been the subject of many adverse decisions under the Policy showing an extensive pattern of bad faith activity.
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”).
The Domain Names each consist of a misspelled version of the Complainant's ACRISURE mark (which is registered in USA for insurance services with first use recorded as 2009) omitting or adding a single letter and adding the gTLD .com.
The Panel agrees that misspellings such as the omission or addition of a letter do not distinguish the Domain Names from the Complainant's trade mark pursuant to the Policy. See Coachella Music Festival LLC v Domain Administrator/China Capital Investment Limited, FA 1734230 (Forum Jul 17, 2017).
The gTLD .com does not serve to distinguish the Domain Names from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Names are confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 use of the Domain Names is commercial and so is not legitimate non commercial fair use.
It is clear from the evidence that the Respondent has used the pages attached to the Domain Names to link to businesses competing with the Complainant through pay per link links. The usage of the Complainant’s mark which has a significant reputation in relation to insurance services to link to similar services not connected with the Complainants is not fair as the pages attached to the Domain Names do not make it clear that there is no commercial connection with the Complainant. As such this use cannot amount to the bona fide offering of goods and services or a legitimate commercial or fair use. See Ashley Furniture Industries Inc. v domain admin / private registrations aktien Gesellschaft, FA 1506001626253 (Forum July 29, 2015).
The Domain Names appear to be typosquatting registrations differing from the Complainant’s mark in each case by only one letter. Typosquatting is an indication of a lack of rights or legitimate 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).”).
The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Names seek to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Respondent is using the Domain Names to point to competing pay per click links to make profit from promoting services not associated with the Complainant in a disruptive and confusing manner. See Health Republic Insurance Company v above.com Legal, FA 1506001622068 (Forum July 10, 2015) (‘The use of a domain name’s resolving web site to host links to competitors of a complainant shows intent to disrupt that Complainant’s business thereby showing bad faith in use and registration under Policy 4 (b)(iii).’
Additionally, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to competing websites by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web sites or services offered on them under Policy 4 (b)(iv). See also Capital One Financial Corp v DN Manager/Whois-Privacy.Net Ltd, FA 1504001615034 (Forum Jun, 4, 2015).
Further the Respondent has been the subject of a number of adverse decisions under the UDRP evidencing a pattern of bad faith activity. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(ii), (iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <acisure.com>, <acrissure.com>, <acrsure.com>, and <acruisure.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: March 1, 2023
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