The Complainant is Swiss Re Ltd. of Zurich, Switzerland, represented by FRORIEP RENGGLI, Switzerland.
The Respondents are xiongqingyi of Weining yihuimiao ethnic autonomous county, Guizhou, China and Mr. Donghui of Hangzhou, Zhejiang, China (“the Respondent” or “the Respondents”). 2. The Domain Name and Registrar
The disputed domain name is registered with Hangzhou AiMing Network Co., LTD (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2014. On January 17, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 20, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 27, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 29, 2014.
On January 24, 2014, the Center transmitted an email to the Registrar, requesting confirmation of the exact time when the registrant of the disputed domain name was changed. On January 26, 2014, the registrar transmitted an email to the Center, confirming that the registrant of the disputed domain name was changed from Donghui to xiongqingyi after the filing of the Complaint. On January 28, 2014, the Respondent Mr. Donghui transmitted an email to the Center, claiming that he was not the owner of the disputed domain name.
On January 27, 2014, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. The Respondent xiongqingyi submitted its request that Chinese be the language of the proceeding to the Center by email on January 28, 2014. On January 29, 2014, the Complainant submitted its request that English be the language of the proceeding by email to the Center.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint in Chinese and English, and the proceeding commenced on January 31, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2014. The Respondent did not submit any formal Response. Accordingly, the Center notified the Respondent’s default on February 21, 2014. On February 22, 2014, the Center received an email communication from the Respondent xiongqingyi. On February 24, 2014, Mr. Donghui sent a further email communication stating that he is not the owner of the disputed domain name.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 26, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background A. Complainant
The Complainant is a company incorporated in Switzerland and a provider of insurance, reinsurance, and other financial services. The Complainant is the owner of numerous registrations worldwide for the trade mark SWISS RE (the “Trade Mark”), the earliest dating from 1994. B. Respondent
The Respondents are individuals apparently with addresses in China. C. The Disputed Domain Name
The disputed domain name was registered on December 10, 2013. D. The Website at the Disputed Domain Name
The website at the disputed domain name (the “Website”) provides sponsored links to various insurance and reinsurance related websites. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant was founded in 1864 and is one of the leading global providers of insurance, reinsurance and other financial services. It has been using the Trade Mark and its domain name since the mid1990s.
The disputed domain name is confusingly similar to the Trade Mark. It is almost identical to the Trade Mark, the only difference being the additional letter “s” at the beginning of the disputed domain name.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated with or authorised by the Complainant in any way and is not commonly known by the disputed domain name.
The use of the disputed domain name in respect of the Website does not amount to a bona fide use. The Website contains no original content and simply provides sponsored links to third party websites.
The Respondent must have known of the Complainant and the Trade Mark when it registered the disputed domain name. This is a typical typosquatting case where the Respondent is seeking to capitalise on typographical errors made by Internet users for commercial gain.
The Respondent has also offered the disputed domain name for sale on the Website, using the wording “The domain is listed for sale for $9,999. Click here to purchase the domain name.”
For all of these reasons, the disputed domain name has been registered and used in bad faith. B. Respondent
The Respondent did not file a formal Response.
The Respondent Mr. Donghui sent two emails to the Center, the first, on January 28, 2014, 11 days after the filing of the Complainant, and the second, on February 24, 2014, after the deadline for filing a Response had expired. In both emails Mr. Donghui claimed not to be the owner of the disputed domain name.
After the deadline for filing a Response had expired, the Respondent xiongqingyi sent an email to the Center, claiming (1) the disputed domain name was based upon the first letters of several Chinese language characters; (2) the Respondent is intending to use the disputed domain name to develop a network of games; and (3) the Respondent does not intend to sell the disputed domain name, but is willing to cooperate with sincere partners. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese.
Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. No agreement has been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding, as the Website contains texts, links and a privacy policy in English, which indicates that the Respondent is familiar with English.
The Respondent has requested that Chinese be the language of the proceeding, or alternatively, has asked that the Complaint be translated into Chinese.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432).
The content of the Website is solely in English, which would suggest that the Respondent is conversant in the English language (Expoconsult B.V. trading as CMP Information v. Roc Guan, WIPO Case No. D2008-1600; Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).
The Panel therefore finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant in the English language (Finter Bank Zurich v. Shumin Peng, supra). The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. The Respondent chose not to file a formal Response.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be unduly prejudiced, should English be adopted as the language of the proceeding. The Panel rejects the Respondent’s alternative request that the Complaint be translated into Chinese.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Cyberflight
Paragraph 8(a) of the Policy expressly prohibits domain name registrants from transferring disputed domain names to another holder during a pending administrative proceeding.
Prior UDRP decisions have held that domain name proceedings commence as at the date of filing of the complaint, not the date of formal notification of the proceedings (Humana Inc. v. CDN Properties Incorporated, WIPO Case No. D2008-1688, citing PREPADOM v. Domain Drop S.A.,WIPO Case No. D2006-0916 and Imperial Chemical Industries, PCL. v. Oxford University,WIPO Case No. D2001-0292).
In the present proceeding, the Respondent Mr. Donghui purportedly transferred the disputed domain name to the Respondent xiongqingyi after the date of filing of the Complaint.
The Respondent Mr. Donghui subsequently sent two emails to the Center, on January 28, 2014 and on February 24, 2014, claiming not to be the owner of the disputed domain name.
The Panel concludes, in all the circumstances of this proceeding, the Respondents have engaged in cyberflight in order to delay or frustrate the proceeding, in direct contravention of paragraph 8(a) of the Policy. The Panel finds that such conduct amounts to cogent evidence of bad faith (Humana Inc v CDN Properties Incorporated, supra). 6.3. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by over 25 years.
In the Panel’s view, this is a clear cut case of typosquatting.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by over 25 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption (Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Panel has considered the allegations of the Respondent xiongqingyi and finds that they are not supported by sufficient evidence.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name is used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which has not been authorised by the Complainant, and provides sponsored links to third party competitors of the Complainant. The Panel concludes such use does not amount to a bona fide offering of goods or services under the Policy.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use of a domain name in bad faith on the part of a respondent:
By using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
This is a clear cut case of typosquatting, where the Respondent has registered and used the disputed domain name for commercial gain, by attracting Internet users to the Website, which offers unauthorised sponsored links to websites of the Complainant’s competitors. The Panel concludes the Complainant has established bad faith registration and use, under paragraph 4(b)(iv) of the Policy.
Pursuant to paragraph 4(b)(i) of the Policy, the following conduct amounts to registration and use in bad faith on the part of a respondent:
Circumstances indicating that the respondent has registered or the respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name.
In the Panel’s opinion, the Respondent xiongqingyi’s assertion that its intention is not to sell the disputed domain name but to cooperate with sincere partners is not convincing.
The Panel concludes the prominent offer on the Website to sell the disputed domain name for “9,999” amounts to further grounds for a finding of bad faith, under paragraph 4(b)(i) of the Policy.
Finally, the Panel’s finding that the Respondents have engaged in cyberflight amounts to further grounds for a finding of bad faith.
For the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: March 12, 2014
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