Complainant is Petplan Ltd, United Kingdom (“UK”), represented by CSC Digital Brand Services Group AB, Sweden.
Respondent is 杨智超 (Zhichao Yang), China.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2021. On December 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 8, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant 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 8, 2021, providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint in English on December 10, 2021.
On December 8, 2021, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant submitted a request that English be the language of the proceeding on December 10, 2021. 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 Respondent in English and Chinese of the Complaint, and the proceedings commenced on December 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2022. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2022.
The Center appointed Yijun Tian as the sole panelist in this matter on January 13, 2022. 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. ComplainantComplainant, Petplan 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 Trademark registration for PETPLAN registered on October 16, 2000 (European Union Trademark registration number 000328492) (Annex 1 to the Complaint).
B. RespondentRespondent is 杨智超 (Zhichao Yang), China.
C. Disputed Domain NamesThe 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 Respondent has no rights or legitimate interests in respect of the disputed domain names.
Complainant contends that Respondent has registered and used the disputed domain names in bad faith.
Complainant requests that the disputed domain names be transferred to Complainant.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingThe 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 proceeding and adjudication of this matter;
b) The disputed domain names are comprised of English words;
c) The website found at the disputed domain names feature various phrases in English, including “Dog Insurance” and “Petplan Login”;
d) Complainant previously sent a cease-and-desist letter to Respondent, as provided in the Complaint. Respondent had ample time and opportunity to respond to such letter and request that communications continue in Chinese. Respondent neither issued such a request nor responded to Complainant in any matter whatsoever; and
e) Respondent’s decision to register a domain name that misappropriates the PETPLAN marks and brand would unduly burden Complainant to have to arrange and pay for translation where Respondent has demonstrated behaviour that disrupts Complainant’s business and has already required Complainant to devote significant time and resources to addressing this instance of abuse.
Respondent 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 regarding all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration to determine 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.
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 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 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).
On the record, Respondent, 杨智超 (Zhichao Yang), appears to be a Chinese resident and is thus presumably not a native English speaker. 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. Substantive IssuesParagraph 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.
Based on the evidence introduced by Complainant and in particular, about the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows:
A. Identical or Confusingly SimilarThe 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, 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 InterestsParagraph 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 the 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 Trademark registration for PETPLAN registered since 2000, which long precede Respondent’s registration of the disputed domain names (all in 2021). 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 Australia, Brazil, Canada, France, Germany, the Netherlands, New Zealand, Spain, and the United States of America. 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, Respondent is not an authorized dealer of Petplan branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names and thereby shifted the burden to Respondent 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 Respondent has no rights or legitimate interests in the disputed domain names:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. Respondent has not provided evidence of legitimate use of the disputed domain names or reasons to justify the choice of the terms “pet plan” in the disputed domain names and their business operations. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the PETPLAN marks or to apply for or use any domain names incorporating the PETPLAN marks. The disputed domain names resolve to website displaying PPC links including some that directly compete with Complainant’s business.
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain names. Respondent registered the disputed domain names in 2021, 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 Respondent is making a legitimate noncommercial or fair use of the disputed domain names. By contrast, the websites, resolved by the disputed domain names, contain PPC links to third-party websites, including some that directly compete with Complainant’s business. It seems that Respondent 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 Respondent has not produced any evidence to establish his rights or legitimate interests in the disputed domain names.
Accordingly, Complainant has established that Respondent has no rights or legitimate interests in the disputed domain names. Therefore, the Panel holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 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 a product or service on the website or location.
The Panel concludes that the circumstances in paragraph 4(b)(iv) of the Policy apply to the present case. Upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has 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, and one of its licensees actually owns and operates under the domain name
Moreover, Respondent has 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
The websites resolved by the disputed domain names contain PPC links to third-party websites, including some that directly compete with Complainant’s business. Thus, the Panel concludes that Respondent is currently using the confusingly similar disputed domain names to attract, for commercial gain, Internet users to Respondent’s 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 about the source, sponsorship, affiliation, or websites endorsement to which the disputed domain names resolve. In other words, Respondent has created a likelihood of confusion with the PETPLAN marks through the use of confusingly similar disputed domain names. Moreover, as mentioned above, Respondent redirects Internet users to third party’s websites (including Complainant’s competitors’ websites) via the PPC links on the websites at the disputed domain names, presumably for commercial gain.
The Panel, therefore, concludes that the disputed domain names were registered and are being used by Respondent in bad faith. Such use of the disputed domain names is also disruptive to the interests of Complainant.
In summary, Respondent, by choosing to register and use the disputed domain names, which are confusingly similar to the PETPLAN mark, 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 Respondent, the choice of the disputed domain names and the conduct of Respondent 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. DecisionFor 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
Sole Panelist
Dated: February 5, 2022