The Complainant is Government Employees Insurance Company (“GEICO”), United States of America (“United States”), represented by Burns & Levinson LLP, United States.
The Respondent is 朱鑫鹏 (zhu xin peng), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 22, 2021. On August 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 25, 2021, 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 August 26, 2021, 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 August 26, 2021.
On August 26, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the administrative proceeding. On August 26, 2021, the Complainant confirmed its request that English be the language of the administrative proceeding. The Respondent did not comment on the language of the administrative 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 in English and Chinese of the Complaint, and the proceeding commenced on September 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 22, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 29, 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. ComplainantThe Complainant is an insurance provider incorporated under the laws of the state of Maryland in the United States and operating predominantly in the United States insurance market since 1948 under the trade mark GEICO (the “Trade Mark”). The Complainant is one of the leading home insurance and automobile insurance providers in the United States market; and the Trade Mark is a well-known mark in the United States in respect of such services.
The Complainant is the owner of several registrations for the Trade Mark, including United States registration No. 763,274, in class 102, with a registration date of January 14, 1964; and International registration No. 1178718 (designating the European Union), in class 36, with a registration date of September 4, 2013.
B. RespondentThe Respondent is an individual resident in China.
C. The Disputed Domain NameThe disputed domain name was registered on August 9, 2021.
D. Use of the Disputed Domain NameThe disputed domain name was previously resolved to an English language website which promoted and offered for sale cutlery and tableware under the name “GEICOSS” (the “Website”).
As at the date of this decision, the disputed domain name is not resolved to any active website.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingThe language of the Registration Agreement for the disputed domain name 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 the fact the Website is an English language website.
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 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.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel also notes that the relevant case related communications were sent to the Parties in both English and Chinese.
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.
6.2. Substantive Elements of the PolicyThe Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. Disregarding the generic Top-Level Domain (“gTLD”) “.top”, the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate InterestsParagraph 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 name or to use the Trade Mark. 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.
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 has been used in connection with a bona fide offering of goods or services. To the contrary, the Respondent has previously used the disputed domain name in connection with the Website, in order to promote and offer for sale cutlery and tableware under a name confusingly similar to the Trade Mark; and the disputed domain is, as at the date of this decision, no longer resolving to any active website.
In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.5.1).
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithIn light of the manner of use of the disputed domain name highlighted in section 6B above, the Panel finds that the requisite element of bad faith has been made out, under paragraph 4(b)(iv) of the Policy. As regards the current inactive status of the disputed domain name, the Panel notes that the “passive holding” of a domain name does not prevent a finding of bad faith. See WIPO Overview 3.0, section 3.3. Rather, the change in use further supports an inference of bad faith.
Moreover, prior panels have held that the mere registration of a domain name that is identical to a famous or widely-known trade mark by an unaffiliated entity can by itself create a presumption of bad faith. WIPO Overview 3.0, section 3.1.4.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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
Sebastian M.W. Hughes
Sole Panelist
Dated: October 11, 2021