Complainant is Pet Plan Ltd., United Kingdom (hereinafter “the UK”), represented by CSC Digital Brand Services Group AB, Sweden.
Respondents are 权中俊, China and 李金梁 (Li Jin Liang), China. 2. The Domain Names and Registrars
The disputed domain names The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2020. On December 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 14, 2020 and December 17, 2020, the Registrars transmitted by email to the Center their verification responses disclosing registrants and contact information for the disputed domain names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 21, 2020 providing the registrants and contact information disclosed by the Registrars, and inviting Complainant to submit an amendment to the Complaint. Complainant filed amended Complaints on December 14, 2020 and December 24, 2020. On December 21, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant confirmed the request that English be the language of the proceeding on December 24, 2020. 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 Respondents of the Complaint in English and Chinese, and the proceedings commenced on January 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2021. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on February 9, 2021. The Center appointed Yijun Tian as the sole panelist in this matter on February 19, 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 A. Complainant Complainant, Pet Plan Ltd, is a company incorporated in the UK. It is a company, which provides pet insurance for domestic and exotic pets both in the UK and around the globe through various licensees. Founded in 1976, Complainant is now a subsidiary of Allianz Insurance plc. According to the Complaint, Complainant has won a number of awards for its products and services (Annex 6.2 to the Complaint). Complainant has exclusive rights in PETPLAN, and PETPLAN related marks (hereinafter “PETPLAN marks”). Complainant is the owner of numerous PETPLAN marks worldwide, including a UK trademark registration for PETPLAN registered on January 17, 1997 (the UK trademark registration number UK00002052294); and a European Union Trade Mark registration for PETPLAN registered on October 16, 2000 (European Union Trade Mark registration number 000328492) (Annex 1 to the Complaint). B. Respondents Respondent are 权中俊, China and 李金梁 (Li Jin Liang), China. The disputed domain names Complainant contends that Complainant has rights in the trademark PETPLAN, and the disputed domain names are confusingly similar to Complainant’s trademark. Complainant contends that Respondents have no rights or legitimate interests in respect of the disputed domain names. Complainant contends that Respondents have registered and used the disputed domain names in bad faith. Complainant requests that the disputed domain names be transferred to Complainant. B. Respondent Respondents did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreements for the disputed domain names (a) Complainant is unable to communicate in Chinese, and translation of the Complaint would unfairly disadvantage and burden Complainant and delay the proceedings and adjudication of this matter; (b) Such additional delay, considering the obviously abusive nature of the disputed domain names and their websites, poses continuing risk to Complainant and unsuspecting consumers seeking Complainant or its products; (c) The disputed domain names are comprised of Latin characters; (d) The websites found at the disputed domain names feature third party links that are in English including “Cat Insurance” and “Dog Insurance” (Annex 3 to the Complaint); (e) The term “petplan”, which is the dominant portion of the disputed domain names, does not carry any specific meaning in the Chinese language; (f) Complainant previously sent a cease-and-desist letter to Respondents, as provided in the Complaint, and Respondents had ample time and opportunity to respond to such letter and request that communications continue in Chinese; and (g) Respondents’ decision to register numerous domain names that misappropriate the famous PETPLAN mark and brand, it would unduly burden Complainant to have to arrange and pay for translation where Respondents have demonstrated behavior that disrupts Complainant’s business and has already required Complainant to devote significant time and resources to addressing this instance of abuse. Respondents did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. 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 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 (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 language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. The Panel has taken into consideration the facts that Complainant is a company from the UK, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. On the record, Respondents 权中俊 and 李金梁 (Li Jin Liang) appear to be Chinese residents and are thus presumably not native English speakers. However, considering the following, the Panel has decided that English should be the language of the proceeding: (a) the disputed domain names Accordingly, the Panel finds the choice of English as the language of the present proceeding is fair to all Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Consolidation of Respondents The Panel notes that the present Complaint has been filed against multiple Respondents and Complainant has submitted a request for consolidation. On this subject, section 4.11 of the WIPO Overview 3.0 provides inter alia as follows: “The WIPO Center may accept, on a preliminary basis, a consolidated complaint where the criteria described below are prima facie met. Any final determination on consolidation would be made by the appointed panel, which may apply its discretion in certain circumstances to order the separation of a filed complaint”. The Panel finds that Complainant has provided sufficient evidence to establish that the disputed domain names or corresponding websites are subject to common control, such as four disputed domain names were all registered on the same day (April 11, 2020), all disputed domain names have been used to host similar website contents with identical website layouts (Annex 3 to the Compliant), all disputed domain names are hosted on the servers Smartname.com, and that the connection between the disputed domain names is reinforced by the similarity in their composition with the only differing aspect between the disputed domain names is the prefixes of Complainant’s trademark, “ggo”, “fo”, “ho”, and “goo”. In all of these circumstances, the Panel considers that it is procedurally efficient to allow Complainant to proceed with the single Complaint as filed and is content that such consolidation is fair and equitable to all of the Parties. 6.3 Substantive Issues Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred: (i) the disputed domain name registered by respondent is identical or confusingly similar to a trademark or service mark in which complainant has rights; and (ii) 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. On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the PETPLAN marks. The disputed domain names Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name”. (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). Further, in relation to the gTLD suffix, WIPO Overview 3.0 further states: “The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11.1.) The Panel therefore holds that the Complaint fulfils 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 circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name: (i) before any notice to respondent of the dispute, the use by respondent 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) respondent has been commonly known by the disputed domain name, even if respondent has acquired no trademark or service mark rights; or (iii) 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 complainant’s trademarks. The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein). The PETPLAN marks have been registered internationally, including a UK trademark registration for PETPLAN registered since 1997; and a European Union Trade Mark registration for PETPLAN registered since 2000, which long precede Respondents’ registration of the disputed domain names (all in 2020). According to Complainant, founded in 1976, Complainant is a leading company providing pet insurance for domestic and exotic pets both in the UK and around the globe through various licensees, including in Canada, United States of America, Australia, New Zealand, Brazil, Germany, France, Spain and the Netherlands. It is now a subsidiary of Allianz Insurance plc – one of the largest general insurers in the UK and part of the Allianz Global Group one of the world’s foremost financial services providers (Annex 6.1 to the Complaint). Moreover, Respondents are not authorized dealers of PETPLAN branded products or services. Complainant has therefore established a prima facie case that Respondents have no rights or legitimate interests in the disputed domain names and thereby shifted the burden to Respondents to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; 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). Based on the following reasons the Panel finds that Respondents have no rights or legitimate interests in the disputed domain names: (a) There has been no evidence adduced to show that Respondents are using the disputed domain names in connection with a bona fide offering of goods or services. Respondents have not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the terms “pet plan” in the disputed domain names and in their business operations. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondents to use the PETPLAN marks or to apply for or use any domain names incorporating the PETPLAN marks. (b) There has been no evidence adduced to show that Respondents have been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondents have any registered trademark rights with respect to the disputed domain names. Respondents registered the disputed domain names in 2020, long after the PETPLAN marks became internationally known. The disputed domain names are confusingly similar to the PETPLAN marks. (c) There has been no evidence adduced to show that Respondents are making a legitimate noncommercial or fair use of the disputed domain names. By contrast, the websites, resolved by the disputed domain names, contain links to third-party websites, including some websites, which directly compete with Complainant’s business. It seems that Respondents made profits through the Internet traffic attracted to the websites under the disputed domain names. (See BKS Bank AG v. Jianwei Guo,WIPO Case No. D2017-1041; BASF SE v. Hong Fu Chen, Chen Hong Fu,WIPO Case No. D2017-2203.) The Panel notes that Respondents have not produced any evidence to establish their rights or legitimate interests in the disputed domain names. Accordingly, Complainant has established that Respondents have no rights or legitimate interests in the disputed domain names. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that respondent has engaged in a pattern of such conduct; or (iii) respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of respondent’s website or location or of a product or service on the website or location. The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondents have registered and used the disputed domain names in bad faith. (a) Registration in Bad Faith The Panel finds that Complainant is a leading company providing pet insurance for domestic and exotic pets both in the UK and around the globe through various licensees, including in Canada, United States of America, Australia, New Zealand, Brazil, Germany, France, Spain and the Netherlands. It is now a subsidiary of Allianz Insurance plc – one of the world’s foremost financial services providers. As mentioned above, PETPLAN marks are registered internationally, including a UK trademark registration for PETPLAN registered since 1997; and a European Union Trade Mark registration for PETPLAN registered since 2000. It is not conceivable that Respondent would not have had actual notice of the PETPLAN marks at the time of the registration of the disputed domain names (in 2020). The Panel therefore finds that the PETPLAN mark is not one that a trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). Moreover, Respondents have chosen not to respond to Complainant’s allegations. According to the UDRP decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787. Thus, the Panel concludes that the disputed domain names were registered in bad faith. (b) Use in Bad Faith Respondents used the websites resolved by the disputed domain names contain PPC links to third-party websites, including some websites, which directly compete with Complainant’s business. Thus, the Panel concludes that Respondents are currently using the confusingly similar disputed domain names with the intention to attract, for commercial gain, Internet users to Respondents’ websites. Given the reputation of the PETPLAN marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain names resolve. In other words, Respondents have, through the use of confusingly similar disputed domain names, created a likelihood of confusion with the PETPLAN marks. Moreover, as mentioned above, Respondents redirect Internet users to third parties’ websites (including Complainant’s competitors’ websites) via the PPC links in the websites to which the disputed domain names resolved, presumably for commercial gain. The Panel therefore concludes that the disputed domain names were registered and are being used by Respondents in bad faith. Such use of the disputed domain names is also disruptive in relation to the interests of Complainant. In summary, Respondents, by choosing to register and use the disputed domain names, which are confusingly similar to the PETPLAN marks, intended to ride on the goodwill of this trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondents, the choice of the disputed domain names and the conduct of Respondents as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith. The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision For all 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 Yijun Tian
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain names, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585).
Sole Panelist
Dated: March 12, 2021
Full & Egal Universal Law Academy