The Complainant is Protective Life Insurance Company, United States of America (“United States”), represented by Maynard, Cooper & Gale, P.C., United States.
The Respondent is 杨智超 (Zhichao Yang), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2021. On December 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 21, 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. On the same day, the Center sent an email communication to the Complainant, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On December 28, 2021, the Complainant confirmed its request that English be the language of the proceeding but submitted the Complaint translated into Chinese. The Respondent did not comment on the language of the proceeding. The Complainant filed an amendment to the Complaint in English on December 29, 2021.
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 proceedings commenced on January 4, 2022. In accordance with the Rules, paragraph 5, the due date for Response was January 24, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 26, 2022.
The Center appointed Matthew Kennedy as the sole panelist in this matter on February 2, 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 BackgroundThe Complainant is a life insurance and annuity provider. The Complainant holds United States trademark registration number 4,727,173 for PROTECTIVE, registered on April 28, 2015, specifying services in class 36, with a claim of first use in commerce in 1908 in respect of certain services. That trademark registration remains current. The Complainant has also registered the domain name
The Respondent is an individual resident in China.
The disputed domain name was created on November 10, 2021. It resolves to a landing page displaying the disputed domain name and Pay-Per-Click (“PPC”) links. The PPC links formerly related to life insurance services but, at the time of this Decision, they relate to newspapers.
5. Parties’ Contentions A. ComplainantThe disputed domain name is confusingly similar to the Complainant’s PROTECTIVE mark. The Complainant owns registered and common law rights in the PROTECTIVE mark.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent uses the disputed domain name to host a website for soliciting potential purchasers of life insurance in direct competition with the Complainant’s services. The sole purpose of the disputed domain name and associated website is to mislead potential purchasers into believing that the website is somehow related to the Complainant. The Respondent does not have the Complainant’s approval to use the PROTECTIVE mark in the disputed domain name or on the associated website.
The disputed domain name was registered and is being used in bad faith. By using the disputed domain name, the Respondent is intentionally attempting to attract for commercial gain, potential purchasers of life insurance products, by causing such potential purchasers of insurance products to mistakenly believe that the Respondent is the Complainant or that the Respondent’s website originates from, or is endorsed or sponsored by, the Complainant, when it does not.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingParagraph 11(a) of the Rules provides that “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”. The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English, even though it provides a translation of the Complaint into Chinese.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
The Panel observes that in this proceeding the Complaint was filed in English and Chinese, and that the amendment to the Complaint was filed in English. Despite the Center having sent an email regarding the language of the proceeding and the formal notification of the Complaint in both Chinese and English, the Respondent has not submitted any comments on language or otherwise expressed any interest in participating in this proceeding. Therefore, the Panel considers that conducting this proceeding in English, as the Complainant requests, will not cause unfairness to either Party.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed.
6.2 Substantive IssuesParagraph 4(a) of the Policy provides that a complainant must prove the following elements:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarBased on the evidence submitted, the Panel finds that the Complainant has rights in the PROTECTIVE mark.
The disputed domain name incorporates almost all of the PROTECTIVE mark but substitutes a zero (“0”) for the letter “o”. This minor difference can be easily overlooked, with the result that the PROTECTIVE mark is clearly recognizable within the disputed domain name, albeit mistyped.
The only additional element in the disputed domain name is a generic Top-Level Domain suffix (“.com”). As a mere technical requirement of domain name registration, this element may be disregarded in the comparison between the disputed domain name and the Complainant’s trademark for the purposes of the Policy.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(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 trademark 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 trademark or service mark at issue.
As regards the first and third circumstances set out above, the disputed domain name resolves to a landing page displaying PPC links that formerly linked to life insurance websites, including websites of the Complainant’s competitors, and that currently link to unrelated websites. This use is for the commercial gain of the Respondent, if he is paid to direct traffic to the linked websites, or the commercial gain of the operators of those linked websites, or both. The Complainant submits that the Respondent does not have the Complainant’s approval to use the PROTECTIVE mark in the disputed domain name or the associated website. Accordingly, the Panel does not find this to be a use in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
As regards the second circumstance set out above, the Respondent’s name is listed in the Registrar’s WhoIs database as “杨智超 (Zhichao Yang)”, not the disputed domain name. There is no evidence on the record that the Respondent is commonly known by the disputed domain name.
Further, the Panel notes that the disputed domain name does not consist of a dictionary word, as one of the characters is a numeral.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he did not respond to the Complainant’s contentions.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
“(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The disputed domain name was registered in 2021, years after the Complainant obtained its trademark registration for PROTECTIVE. The disputed domain name incorporates almost all of the PROTECTIVE mark, but substitutes a zero (“0”) for the letter “o”. This is an obvious typographical error in the spelling of the mark and constitutes a case of “typosquatting”. There appears to be no reason to register the disputed domain name other than to take advantage of Internet users who mistype the Complainant’s website address “www.protective.com” in an Internet browser. Further, the disputed domain name formerly resolved to a landing page displaying PPC links to websites offering life insurance services, which indicates an awareness of the nature of the Complainant’s services. These circumstances give the Panel reason to find that the Respondent had the Complainant’s PROTECTIVE trademark in mind at the time when he registered the disputed domain name.
The Respondent uses the disputed domain name in connection with a landing page displaying PPC links that formerly linked to life insurance websites, including websites of the Complainant’s competitors, and that currently link to unrelated websites. The PPC links operate for the commercial gain of the Respondent, if he is paid to direct traffic to the linked websites, or the commercial gain of the operators of those linked websites, or both. In view of these circumstances, the Panel considers that the disputed domain name is intended to attract Internet users by creating a likelihood of confusion with the Complainant’s PROTECTIVE trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or other online location of a service offered on such other online location within the terms of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy.
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
Matthew Kennedy
Sole Panelist
Date: February 14, 2022