Transamerica Corporation v. Meng Dan Qian
Claim Number: FA2303002034321
Complainant is Transamerica Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., US. Respondent is Meng Dan Qian (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <trs-transamerican.com>, <wwwtrs-transamerica.com>, (‘the Domain Names’) registered with 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 March 2, 2023; Forum received payment on March 2, 2023.
On March 4, 2023, Cloud Yuqu LLC confirmed by e-mail to Forum that the <trs-transamerican.com>, <wwwtrs-transamerica.com> Domain Names are registered with Cloud Yuqu LLC and that Respondent is the current registrant of the names. Cloud Yuqu LLC has verified that Respondent is bound by the 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 March 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 27, 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@trs-transamerican.com, postmaster@wwwtrs-transamerica.com. Also on March 6, 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 April 4, 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.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the trade mark TRANSAMERICA for financial and insurance services with first use for financial services recorded as 1929 and first use for insurance services recorded as 1959. It owns trs-transamerica.com and trstransamerica.com to advertise and promote its Transamerica Retirement Solutions products and services.
The Domain Names registered in 2022 have been pointed to links to the Complainant’s competitors.
The Domain Names are confusingly similar to the Complainant’s trade mark incorporating it in its entirety and adding only extra letters ‘trs’ (reflecting the Complainant’s url) and/or the additional letters ‘www’ and/or an additional letter ‘n’, a hyphen and the gTLD .com which do not distinguish the Domain Names from the Complainant’s mark. As typosquatted registrations they are registered to be confusingly similar with the Complainant’s mark.
The Respondent has no rights or legitimate interests in the Domain Names.
The Respondent is not commonly known by ‘Transamerica’ or variations thereof and the Complainant has not authorized the Respondent to use the same. Use of a confusingly similar domain name to point to a web site containing links to service offerings in direct competition with the Complainant is not a bona fide offering of goods or services or a non commercial fair use. In fact it is diverting and confusing Internet users pursuant to Policy 4 (b)(iv) and disrupting the Complainant’s business under Policy 4 (b) (iii) in full knowledge of the Complainant’s rights in opportunistic bad faith. Typosquatting is also per se evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark TRANSAMERICA for financial and insurance services with first use for financial services recorded as 1929 and first use for insurance services recorded as 1959. It owns trs-transamerica.com and trstransamerica.com to advertise and promote its Transamerica Retirement Solutions products and services.
The Domain Names registered in 2022 have been pointed to links to the Complainant’s competitors.
Preliminary Issue: Language of Proceedings
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.
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 consist of the Complainant’s TRANSAMERICA mark (registered in the USA for financial and insurance services and used since at least 1929), the letters ‘trs’ and/or the additional letters ‘www’ and/or an additional letter ‘n’, a hyphen and the gTLD.com.
Panels have found that adding letters to a registered mark does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015)(finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’). see also State Farm Mutual Automobile Insurance Company v. ICS INC., FA 1532366 (Forum Jan. 14, 2014) (observing that the addition of the prefix “www” and the letter “e” to the end of Complainant’s mark is insufficient to overcome a finding of confusing similarity under Policy ¶ 4(a)(i)). ‘Www’ means World Wide Web and is commonly used in domain name addresses. Accordingly, adding the letters ‘trs’ and/or ‘n’ and or ‘www’ does not serve to distinguish either of the Domain Names from the Complainant’s mark pursuant to the Policy.
Adding a hyphen does not prevent confusing similarity between the Domain Names and the Complainant’s mark. See Health Devices Corp. v Aspen STC, FA 158254 (Forum July , 2003)(The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i).
The gTLD .com does not serve to distinguish the Domain Names from the TRANSAMERICA mark, which is the distinctive component of the Domain Names. 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 each confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
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 is commercial, so cannot be legitimate non commercial fair use.
The Respondent has used the site attached to the Domain Names for links offering competing services not connected with the Complainant. It does not make it clear that there is no commercial connection with the Complainant.The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311(Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties… Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Domain Names also appear to be typosquatting registrations reflecting the urls of the Complainant trs-transamerica.com and trstransamerica.com. Typosquatting is also an indication of a lack of rights or a 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 the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
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 deliberately being chosen to be similar to the urls used by the Complainant and showing that the Respondent has actual knowledge of the Complainant, its business, rights and services. 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.”).
Further in the opinion of the panelist the use made of the Domain Names in relation to the Respondent’s site is confusing and disruptive in that visitors to the sites might reasonably believe the links on them are connected to or approved by the Complainant. Use to point to a site that has links relating to the Complainant’s competitors also is evidence that the Respondent is aware of the Complainant and its business.Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or services on them likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to point to competing dealerships not connected with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those third party businesses and was therefore evidence of bad faith and use).
As such, the Panel holds that the Complainant has made out its case that the Domain Names were registered and used in bad faith under Policy 4 (b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trs-transamerican.com>, <wwwtrs-transamerica.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 5, 2023
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