WIPO Domain Name Decision D2020-0233 for exelonbenefit.com, exelonbenfits.com, exlonbenefits.com, wwwbgehome.com

WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Exelon Corporation v. Super Privacy Service LTD c/o Dynadot and 张存硕 (Cun Shuo Zhang) Case No. D2020-0233 1. The Parties

The Complainant is Exelon Corporation, United States of America (“United States”), represented by Ballard Spahr, LLP, United States.

The Respondents are Super Privacy Service LTD c/o Dynadot, United States and 张存硕 (Cun Shuo Zhang), China.

2. The Domain Names and Registrar

The disputed domain names and are registered with West263 International Limited; the disputed domain name is registered with Cloud Yuqu LLC; and the disputed domain name is registered with Dynadot, LLC (collectively the “Registrars”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2020. On January 30, 2020, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On January 31, 2020, the Registrar Dynadot, LLC transmitted by email to the Center its verification response confirming that the Respondent Super Privacy Service LTD c/o Dynadot is listed as the registrant for the disputed domain name and providing the contact details. On January 31 and February 1, 2020, the Registrars Cloud Yuqu LLC and West263 International Limited transmitted by email to the Center their verification responses disclosing registrant and contact information for the remaining disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 12, 2020 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on February 18, 2020.

On February 12, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding in relation to the disputed domain names , and . The Complainant confirmed its request that English be the language of the proceeding on February 16, 2020. The Respondents 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 Respondents in English and Chinese of the Complaint, and the proceeding commenced on February 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on March 24, 2020.

The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on April 3, 2020. 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 Fortune 100 company incorporated in the United States and is one of the largest electric utility holding companies in the United States by revenue. The Complainant has provided a wide range of energy related goods and services to customers in the United States for many years under the trade mark EXELON (the “EXELON Trade Mark”).

The Complainant is the owner of a number of registrations for the EXELON Trade Mark in the United States and in the European Union, including United States registration No. 3323228, with a registration date of October 30, 2007.

On June 18, 2009, the Complainant registered and commenced use of the domain name to provide its employees access to their employment benefits resources.

The Complainant is the ultimate parent company of BGE Home. BGE Home has provided utility services, including heating, cooling, electrical, and plumbing services, in the state of Maryland in the United States since 1995 under the trade mark BGE HOME (the “BGE HOME Trade Mark”).

The Complainant is the owner of United States registration No. 2569242 for the BGE HOME Trade Mark, with a registration date of May 14, 2002.

The Complainant’s primary domain name for BGE Home, , has been registered since April 29, 1997.

B. Respondents

One of the Respondents appears to be a privacy service located in the United States. The other Respondent is apparently an individual located in China.

C. The Disputed Domain Names

The disputed domain names , , and were registered on December 4, 2019.

The disputed domain name was registered on December 15, 2019.

D. Use of the Disputed Domain Names

The disputed domain names resolve to English language websites providing sponsored links, in the case of the disputed domain names , , and , to employee benefit, health and insurance related websites, and in the case of the disputed domain name , to home appliance related websites, including by direct reference to the BGE HOME Trade Mark (the “Websites”).

5. Parties’ Contentions A. Complainant

The Complainant contends that the disputed domain names , , and are identical or confusingly similar to the EXELON Trade Mark, the disputed domain name is identical or confusingly similar to the BGE HOME Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names were registered and are being used in bad faith.

B. Respondents

The Respondents did not reply to the Complainant’s contentions.

6. Discussion and Findings 6.1 Consolidation of the Respondents

Previous UDRP decisions suggest that consolidation of multiple respondents may be appropriate, under paragraphs 3(c) and 10(e) of the Rules, where the particular circumstances of a given case indicate that common control is being exercised over the disputed domain names or the websites to which the disputed domain names resolve, where consolidation would be fair and equitable to all parties, and where procedural efficiency supports consolidation (see section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

In the present proceeding, the Complainant contends as follows:

(i) The disputed domain names , , and are registered to the same individual;

(ii) The identity of the registrant of the disputed domain name is masked by a privacy service;

(iii) All four of the disputed domain names were registered in December 2019;

(iv) The disputed domain names have the same IP addresses and name servers;

(v) The Websites are nearly identical in appearance and feature the same pay-per-click advertisement content; and

(vi) The disputed domain names are all intentional misspellings of domain names associated with the Complainant and are each used for the same purpose of gaining pay-per-click revenue by targeting the EXELON Trade Mark and the BGE HOME Trade Mark (the “Trade Marks”).

The Respondents did not file a response and did not file any submissions with respect to this issue.

In all the circumstances, the Panel concludes that the evidence relied upon by the Complainant supports the conclusion that common control is being exercised over the disputed domain names.

In all the circumstances, the Panel determines, under paragraph 10(e) of the Rules, that consolidation of the Respondents is procedurally efficient and equitable to all the Parties, is consistent with the Policy and Rules, and comports with prior relevant UDRP decisions in respect of this issue. The Respondents are referred to hereinafter as the “Respondent”.

6.2 Language of the Proceeding

The language of the Registration Agreements for the disputed domain names , , and is Chinese. Pursuant to the Rules, paragraph 11, 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.

Paragraph 11(a) of the Rules 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 order 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.

The Complainant has requested that the language of the proceeding be English for several reasons, including:

(i) The Registration Agreement for the disputed domain name is in English;

(ii) The disputed domain names are English language domain names;

(iii) The Websites are English language websites;

(iv) The Complainant is located in the United States and has no knowledge of Chinese; and

(v) Proceeding in Chinese would result in undue burden on the Complainant and cause undue delay, because the Complainant would be required to hire a translator.

The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.

In exercising its discretion to use a language other than that of the Registration Agreements, 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.

The Panel therefore finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.

In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.

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.

6.3 Substantive Elements of the Policy A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration.

The disputed domain names , , and incorporate the Trade Marks in their entirety respectively with the addition of the terms “benefit”, “benfits”, and “www”, which do not prevent a finding of confusing similarity between the disputed domain names and the Trade Marks (see WIPO Overview 3.0, section 1.8). The disputed domain name consists of common, obvious, or intentional misspellings of the EXELON Trade Mark (see WIPO Overview 3.0, section 1.9).

The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Marks.

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 disputed domain name:

(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) The respondent (as an individual, business, or other organization) has been commonly known by the disputed 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 disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Marks. 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 names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.

The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names resolve to the Websites containing pay-per-click links either similar to the services provided by the Complainant to its employees or related to the Complainant’s business, including, in the case of the disputed domain name , by direct reference to the BGE HOME Trade Mark.

There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.

There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.

In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

In light of the manner of the use of the disputed domain names highlighted in Section 6.3B. above, the Panel finds that the requisite element of bad faith has been made out under paragraph 4(b)(iv) of the Policy.

The Panel therefore finds that the disputed domain names have been registered and are being used in bad faith.

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 names , , , and be transferred to the Complainant.

Sebastian M.W. Hughes
Sole Panelist
Dated: April 17, 2020

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