The Complainant is Government Employees Insurance Company (“GEICO”), United States of America, represented by Burns & Levinson LLP, United States of America (“United States”).
The Respondent is 徐帅伟 (Xu Shuai Wei), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2020. On October 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 13, 2020, 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 October 15, 2020 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 amendment to the Complaint on October 15, 2020. On October 15, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On October 15, 2020, the Complainant requested 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 amendment to the 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 of the Complaint in both Chinese and English, and the proceedings commenced on November 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 13, 2020. The Center appointed Douglas Clark as the sole panelist in this matter on January 6, 2021. 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 a well-known insurance company that has provided numerous types of insurance services since 1936, including automobile, motorcycle, homeowners, rental, condominium, flood, among others. The Complainant has over 17 million policies and insures more than 28 million vehicles. It has over 40,000 employees and is one of the fastest growing auto insurers in the United States. The Complainant has been trading under the GEICO trade mark for nearly 80 years and owns exclusive rights in such. The Complainant owns numerous trade marks in the United States that wholly incorporate the GEICO trade mark, including: Mark International Class Registration Number Registration Date GEICO 35, 36 0,763,274 January 14, 1964 GEICO 36 2,601,179 July 30, 2002 GEICO AUTO REPAIR XPRESS 36 2,982,260 August 2, 2005 GEICO MOTORCYCLE 36 3,262,263 July 10, 2007 The Complainant has made extensive use of its GEICO trade mark in relation to its services and the GEICO trade mark has become uniquely associated with the Complainant and its services. The Complainant has also established a website located at “www.geico.com” to promote its insurance products and services. The “www.geico.com” website allows computer users to access the Complainant’s insurance services, manage policies and claims, and learn more about the Complainant and its services. The disputed domain name The Complainant contends that: (a) The disputed domain name is confusingly similar to its trade mark. The addition of the terms “mobile”, “app” and “.com” in the disputed domain name does not eliminate the overall notion that the designation is connected to the trade mark and the likelihood of confusion that the disputed domain name and the trade mark are associated; (b) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant in any way and the Complainant has never granted any authorization or license to use the Complainant’s trade mark. The Respondent is not commonly known by the disputed domain name, and has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name; and (c) The disputed domain name was registered and is being used in bad faith. The mere fact that the Respondent has registered a domain name incorporating the trade mark of a well-known company gives rise to an inference of bad faith. The Respondent also registered the disputed domain name that incorporates the GEICO trade mark in its entirety. The Respondent is using the disputed domain name to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant’s trade mark. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issues – Language of the Proceeding According to paragraph 11(a) of the Rules, 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. In this case, the language of the Registration Agreement for the disputed domain name is in Chinese. Based on the given evidence, there is no agreement between the Complainant and the Respondent regarding the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds: a) the language of the disputed domain name is in English; b) the content of the webpage under the disputed domain name is in English; and c) in order to proceed in Chinese, the Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall cost of this proceeding. In accordance with paragraph 11(a) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances: - the Center has notified the Respondent of the proceeding in both English and Chinese; - the website under the disputed domain name is in English; and - an order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding. Further, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”. 6.2 Substantive Issues The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action: (i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights to; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name The Panel notes that the Complainant does not rely on any registered trade marks for GEICO in China where the Respondent is located. The ownership of a trade mark is generally considered to be a threshold standing issue. The location of the trade mark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trade mark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”)). The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain name. Section 2.1 of the WIPO Overview 3.0 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 asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s GEICO trade mark or to apply for registration of the disputed domain name. In addition, the Respondent has not responded to any of the Complainant’s contentions. The Panel finds that the Respondent has no rights or legitimate interests in regard to the disputed domain name. The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Based on the given evidence, the disputed domain name The disputed domain name was registered long after the Complainant has registered the GEICO trade mark. The use of the Complainant’s GEICO trade mark with the terms “mobile” and “app” cannot be a coincidence. The GEICO trade mark is used by the Complainant to conduct its business and the Complainant has traded under the GEICO trade mark for nearly 80 years. The Panel is satisfied that the Respondent was aware of the Complainant and its GEICO trade mark when he or she registered the disputed domain name. The Complainant has acquired reputation of the GEICO trade mark and the Respondent has failed to submit a response or produce evidence of good-faith use of the trade mark. (See section 3.3 of the WIPO Overview 3.0.) In addition, the Complainant has provided evidence that the disputed domain name resolves to a webpage containing a list of apparent pay-per-click hyperlinks to unrelated third-party websites, which shows an intention to use the disputed domain name for commercial gain. It appears to the Panel that the Respondent has registered the disputed domain name to attract Internet users to the website for commercial gain in accordance with paragraph 4(b)(iv) of the Policy. For the above reasons, the Panel finds that the disputed domain name was registered and is used in bad faith. The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy. 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 Douglas Clark
Sole Panelist
Date: February 2, 2021
Full & Egal Universal Law Academy