The Complainant is Milliman, Inc. of Seattle, United States of America ("United States"), represented by Adams and Reese LLP, United States.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China ("the first Respondent") / Leed Johnny, Johnny of Chengdu, Sichuan, China ("the Second Respondent"). 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on May 26, 2018. On May 28, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 29, 2018, 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 June 1, 2018 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 June 6, 2018.
On June 1, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On June 1, 2018, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 and 4, the Center formally notified the Respondent, in English and Chinese, of the Complaint, and the proceedings commenced on June 7, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 28, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on July 5, 2018. 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
The Complainant is an international independent actuarial and consulting firm operating under the name Milliman Inc.since 1947.
The Complainant owns numerous trademark registrations for MILLIMAN in numerous jurisdictions, including:
1. China (registration no. 3838950, registered on May 14, 2006 and registration no. 5853860, registered on March 28, 2010 and international registration no. G959067, registered on August 10, 2007);
2. European Union (registration no. 003295474, registered on November 19, 2004 and registration no. 959067, registered on August 10, 2007);
3. Hong Kong, China (registration no. 300113011, registered on November 18, 2003 and registration no. 300932940, registered on August 13, 2007); and
4. the United States (registration no. 2551240, registered on March 19, 2002; registration no. 2535010, registered on January 29, 2002; registration no. 2694177, registered on March 4, 2003; registration no. 2535009, registered on January 29, 2002; registration no. 3387917, registered on February 26, 2008 and registration no. 3592193, registered on March 17, 2009).
The Complainant has been the registrant of the domain name since 2005.
The first Respondent is a privacy registration service located in Hangzhou, China. The second Respondent is an individual named "Leed Johnny" located in Sichuan, China.
The disputed domain name was registered on November 26, 2016 and resolves to a parking page displaying pay-per-click advertising links to websites offering services identical or related to those of the Complainant. 5. Parties' Contentions A. Complainant
The Complainant's contentions are as follows:
Identical or Confusingly Similar
The Complainant contends that:
1. the disputed domain name is confusingly similar to the Complainant's registered trademark MILLIMAN, as the omission of the letter "N" is insufficient to distinguish the disputed domain name from the Complainant's MILLIMAN mark;
2. the word "benefits" increases the confusing similarity because the Complainant's business involves the provision of benefits services; and
3. the addition of the generic Top-level Domains ("gTLDs") does not avoid the finding of confusing similarity as it does not serve to identify a specific enterprise as a source of goods or services.
No rights or legitimate interests
"Millima" is not the name of the Respondent.
The Respondent is not, and has never been a licensee or franchisee of the Complainant and has never been authorized by the Complainant to register or use the Complainant's MILLIMAN mark or to apply for or use any domain name incorporating the mark.
Registered and Used in bad faith
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant's rights in the MILLIMAN mark because of the Complainant's international reputation and that MILLIMAN is not a dictionary word.
The Respondent is using the disputed domain name as a parking page, from which the Respondent generates revenues for each click-through of the sponsored links. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
Paragraph 11(a) of the Rules provides that: "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding." The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that:
1. the disputed domain name is in Latin characters and incorporates English words;
2. the content of the website to which the disputed domain name resolved are all in English;
3. translation would cause disproportionate expense for translation services to the Complainant and would cause undue delay to the proceedings.
Neither the first Respondent nor the second Respondent of the disputed domain name commented on the language request.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties.
The Panel observes that the Complaint in this proceeding was filed in English. The Panel also observes that the website to which the disputed domain name resolved was in English, from which it is reasonable to deduce that the Respondent understands that language.
Moreover, neither the Respondent nor the underlying registrant of the disputed domain name has expressed any wish to respond to the Complaint or otherwise participate in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. 6.2 Substantive Issues A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's MILLIMAN mark.
The disputed domain name incorporates the Complainant's registered trademark MILLIMAN and with the omission of the letter "N". This Panel finds such omission is insufficient to distinguish the disputed domain name from the Complainant's mark. The addition of the descriptive word "benefits" is insufficient to dispel the confusing similarity of the disputed domain name to the MILLIMAN mark. A gTLD suffix is generally disregarded for the purposes of assessing confusing similarity under the Policy.
The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
Section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition provides:
"While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element."
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant's contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant's trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith.
The Respondent should have known of the Complainant's trademark when it registered the disputed domain name as the Complainant had registered the MILLIMAN mark in various jurisdictions, including China.
This case falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
"(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location."
The fact that the disputed domain name resolves to parking page showing pay-per-click links indicates that the webpage is designed to divert Internet users to other websites purportedly offering services identical or related to those of the Complainant and generate revenues from the confusion caused.
Therefore, third element of paragraph 4(a) of the Policy is satisfied. 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.
Douglas Clark
Sole Panelist
Date: July 12, 2018
Full & Egal Universal Law Academy