The Complainant is Ally Financial Inc., United States of America (“United States”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is 泮帅楼 (Pan Shuai Lou), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2020. On August 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 4, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On August 5, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On August 6, 2020, the Complainant submitted a request that English be the language of the proceeding through the amended Complaint in English. The 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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on August 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 31, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 1, 2020. The Complainant, Ally Financial Inc., was founded in 1919 by General Motors Corporation as the General Motors Acceptance Corporation (“GMAC”) to be a provider of financing to automotive customers. Its services include insurance, online banking, investment services, mortgage operations, and commercial finance. GMAC rebranded itself as Ally in 2009 and became a public company (The New York Stock Exchange: ALLY). The Complainant reported an adjusted total net revenue of USD 6.3 billion for 2019 for its online banking (Ally Bank), vehicle financing and dealer services (Ally Auto), investing and wealth management (Ally Invest) and commercial finance (Ally Corporate Finance). In particular, Ally Bank has 1.97 million customers with USD 121 billion in total deposits. ALLY and ALLY BANK are marks used by the Complainant in connection with financial services since 2009, include banking and financing services, mortgage banking and lending services, investment services, debit and credit card services, financing of vehicles and online auctions for used vehicles. The Complainant is the owner of various ALLY and ALLY BANK marks worldwide, including Colombia trademark No. 461184 for ALLY in class 36 with a valid date until September 25, 2022, International trademark No. 1074075 for ALLY BANK registered on March 28, 2011 in class 36 which, inter alia, designates China, and Chinese trademark No. G1074075 for ALLY BANK registered on March 28, 2011 in class 36. The Complainant owns several domain names incorporating the ALLY and ALLY BANK marks, including The Respondent is the registrant of the disputed domain name Identical or confusingly similar The Complainant contends that it is the owner of the ALLY and ALLY BANK marks. The applicable Top-Level Domain (“TLD”) in the disputed domain name is a standard registration requirement and is disregarded under the first element confusing similarity test. The second level domain of the disputed domain name consists solely of the Complainant’s ALLY BANK mark, resulting in a domain name that is identical to the Complainant’s ALLY BANK mark. No rights or legitimate interests The Complainant asserts that the registrations of the ALLY BANK and ALLY marks is prima facie evidence of the Complainant’s ownership and exclusive right to use these marks in commerce on or in connection with the goods and/or services specified in the registration certificates. The Complainant asserts that it has not licensed, authorized, or permitted the Respondent to register domain names incorporating the Complainant’s marks. The Complainant claims that the Respondent is not commonly known by the disputed domain name, which evinces a lack of rights or legitimate interests. The WhoIs information identifies the Registrant as “Pan Shuai Lou”, which does not resemble the disputed domain name in any manner. The Complainant contends that the disputed domain name redirects Internet users to different third party websites each time a user types in the URL, and some of which offer services that are in direct competition with the Complainant’s own offerings. The Complainant claims that the Respondent has intentionally chosen a domain name based on a famous trademark in an attempt to profit off the fame of the Complainant’s mark and direct users to an aggregator website that offers competing services. As a result, the Respondent is not using the disputed domain name to provide a bona fide offering of goods or services. The Complainant contends that the Respondent registered the disputed domain name on April 29, 2017, which is significantly after the Complainant filed for registration of its ALLY BANK and ALLY marks, first use of in commerce of its marks on May 15, 2009 and the Complainant’s registration of Registered and used in bad faith The Complainant asserts that by registering a domain name entirely comprised of the Complainant’s ALLY BANK mark and confusingly similar to its The Complainant contends that the Respondent is not making a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name and has registered and used it in bad faith. The Complainant claims that the Respondent has purposefully registered a domain name with the intent of disrupting the business of the Complainant by diverting Internet users to an aggregator website. The Complainant asserts that the Respondent has previously been involved in other domain name dispute cases, which provides evidence of the pattern of cybersquatting and bad faith registration. The Complainant claims that the Respondent has ignored the Complainant’s attempts to resolve this dispute outside of this administrative proceeding and considers this may properly be considered a factor in finding bad faith registration and use of the disputed domain name. The Complainant contends that, it is well established that delay in bringing a complaint is generally not a defense in UDRP proceedings. It has extensively used its ALLY BANK and ALLY marks in commerce since 2009, including in China where the Respondent resides, that predate registration of the disputed domain name. The Complainant claims that it has not actively solicited the Respondent in an attempt to acquire the disputed domain name. The Respondent has passively held the disputed domain name since its registration and no identity in the disputed domain name has been developed. As such, the Complainant concludes that any delay should neither be considered detrimental to the present case, nor inhibit the Complainant’s ability to file or prevail on the merits of this instant matter. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding The Language of the Registration Agreement is Chinese. The Complainant requested the language of the proceeding be in English on the grounds that (i) the Complainant is unable to communicate in Chinese and translation of the Complaint would unfairly disadvantage and burden the Complainant and delay the proceedings and adjudication of this matter; (ii) such additional delay, considering the obviously abusive nature of disputed domain name and its website which redirects Internet users to other websites, poses continuing risk to the Complainant and unsuspecting consumers seeking the Complainant or its products; (iii) the disputed domain name is comprised of Latin characters; (iv) the websites found at the disputed domain name feature various phrases in English; (v) the term “Ally Bank”, which is the dominant portion of the disputed domain name, does not carry any specific meaning in the Chinese language; (vi) prior UDRP panels have made decisions against the Respondent in the past, demonstrating that he is engaging in a pattern of cybersquatting; (vii) the Complainant previously sent a cease-and-desist letter to the Respondent, and the Respondent had ample time and opportunity to respond to such letter and request that communications continue in Chinese. The Respondent neither issued such a request nor responded to the Complainant in any matter whatsoever. To allow the Respondent to dictate the course of this matter and further burden the Complainant at this juncture would contravene the spirit of the UDRP and disadvantage the Complainant; and (viii) the Panel may determine the language of the proceeding having regard to all circumstances, and to help ensure fairness, and maintain an inexpensive and expeditious avenue for resolving domain disputes. Here, in light of the Respondent’s use of the disputed domain name and the Respondent’s decision to register a domain name that misappropriates the famous ALLY BANK mark and brand, it would unduly burden the Complainant to have to arrange and pay for translation where the Respondent has demonstrated behaviour that disrupts the Complainant’s business and has already required the Complainant to devote significant time and resources to addressing this instance of abuse. The Respondent did not respond to this request. Paragraph 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 Center made a preliminary determination to: 1) accept the Complaint as filed in English; 2) accept a Response in either English or Chinese; 3) appoint a Panel familiar with both languages mentioned above, if available. The final determination of the language of the proceeding lies with this Panel. The Respondent did not respond to the Center’s preliminary determination. 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”. The Panel would have accepted a Response in Chinese, but none was filed. The above circumstances lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Delay in Bringing the Complaint The Complaint was filed on July 31, 2020, which is more than three years after the disputed domain name was registered on April 29, 2017. Section 4.17 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides: “Panels have widely recognized that mere delay between the registration of a domain name and the filing of a complaint neither bars a complainant from filing such case, nor from potentially prevailing on the merits. Panels have noted that the UDRP remedy is injunctive rather than compensatory, and that a principal concern is to halt ongoing or avoid future abuse/damage, not to provide equitable relief. Panels have furthermore noted that trademark owners cannot reasonably be expected to permanently monitor for every instance of potential trademark abuse, nor to instantaneously enforce each such instance they may become aware of, particularly when cybersquatters face almost no (financial or practical) barriers to undertaking (multiple) domain name registrations. Panels have therefore declined to specifically adopt concepts such as laches or its equivalent in UDRP cases. Panels have however noted that in specific cases, certain delays in filing a UDRP complaint may make it more difficult for a complainant to establish its case on the merits, particularly where the respondent can show detrimental reliance on the delay.” The Panel agrees with the above that, and finds there is no evidence in the present case that would suggest the Complainant has any difficulties in establishing its case. 6.3 Substantive Issues A. Identical or Confusingly Similar The Panel finds the disputed domain name The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests The Respondent has not responded to the Complaint to assert any rights or legitimate interests. 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 made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has no business or any kind of relationships (e.g., licensor, distributor) with the Complainant. Further, the Respondent is not commonly known by the disputed domain name. Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith Based on the evidence, the Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith. The disputed domain name was registered after the Complainant had registered and used the ALLY BANK mark. The Panel is satisfied that the Respondent must have known the Complainant’s well-known ALLY BANK mark when he registered the disputed domain name. It appears to the Panel that the Respondent has registered the disputed domain name in order to create an association with the Complainant as a means of attracting users to the resolved website. Although the disputed domain name resolved to an inactive website at the date of this decision, the Panel finds that the inactive use of the disputed domain name in this case would not prevent a finding of bad faith under the doctrine of passive holding (see WIPO Overview 3.0, section 3.3). Further, the Complainant has provided evidence that the Respondent has been using the disputed domain name to redirect Internet users to third party websites which some of them are in the similar business as the Complainant. Under all the circumstances of this case as described above, the Panel is satisfied that the Respondent registered the disputed domain name with the Complainant’s marks in mind and has used the disputed domain name in bad faith. For the above reasons, the third part of the paragraph 4(a) of the Policy is therefore satisfied. 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
The Center appointed Douglas Clark as the sole panelist in this matter on September 17, 2020. 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
Sole Panelist
Date: September 29, 2020
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