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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Exelon Corporation v. 杨智超 (Zhichao Yang)

Case No. D2021-2551

1. The Parties

The Complainant is Exelon Corporation, United States of America (“US”), represented by CSC Digital Brand Services Group AB , Sweden.

The Respondent is 杨智超 (Zhichao Yang), China.

2. The Domain Names and Registrar

The disputed domain names <atalnticcityelectric.com>, <bgesmartemergy.com>, <exelconcorp.com>, <jobsexeloncorp.com>, <pepcownergywiserewards.com> are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2021. On August 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 9, 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 the Complainant on August 11, 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 amended Complaint in English on August 13, 2021.

On August 11, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on August 13, 2021. 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 of the Complaint in English and Chinese, and the proceedings commenced on August 31, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 29, 2021.

The Center appointed Douglas Clark as the sole panelist in this matter on October 7, 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

The Complainant is a US listed company that works in every stage of the energy business: power generation, competitive energy sales, transmission and delivery. The Complainant does business in 48 states, the District of Columbia and Canada. The Complainant is traded on the New York Stock Exchange under symbol “EXC”. The Complainant is the parent company of a number of energy transmission and delivery providers, including Atlantic City Electric, BGE and Pepco. The domain name for Atlantic City Electric is <atlanticcityelectric.com>, for BGE is <bge.com> and for PEPCO is <pepco.com>.

The Complainant is also the owner of trademark registrations across various jurisdictions through its subsidiaries Pepco Holdings LLC, Baltimore Gas and Electric Company (“BGE”), and the Potomac Electric Power Company (“PEPCO”).

The Trade Marks owned by the Complainant and relevant in this case are as follow:

(i): In relation to ATLANTIC CITY ELECTRIC Trade Mark: United States Trade Mark Registration number 3264304; registered on July 17, 2007; United States Trade Mark Registration number 3382843, registered on February 12, 2008.

(ii) In relation to BGE Trade Mark: United States Trade Mark Registration number 1964556, registered on March 26, 1996; United States Trade Mark Registration number 3808895, registered on June 29, 2010.

(iii) In relation to BGE SMARTENERGY REWARDS Trade Mark: United States Trade Mark Registration number 4373368, registered on July 23, 2013.

(iv) In relation to EXELON Trade Mark: Chinese Trade Mark numbers 23744540, 23744541 and 23744543, all registered on April 14, 2018; United States Trade Mark number 2409546, registered on November 28, 2000.

(v) In relation to PEPCO Trade Mark: United States Trade Mark number 3403018, registered on March 25, 2008; United States Trade Mark number 0934606, registered on May 23, 1972.

The Respondent is an individual based in China. The Respondent is redirecting Internet users to either third-party websites or an inactive website through the disputed domain names.

5. Parties’ Contentions

A. Complainant

The Complainant contends the disputed domain names are confusingly similar to the Complainant’s Trade Marks involving typosquatting. The Complainant also contends that the Top-Level Domain (“TLD”) in the disputed domain names (namely “.com” in this case) should be disregarded for the confusing similarity test.

The Complainant contends the Respondent has no rights and legitimate interest in the disputed domain names on the bases: (i) the Respondent is in no way related to the Complainant; (ii) the Respondent is not commonly known by the disputed domain names; (iii) the Respondent is redirecting Internet users to either third-party websites or a blank page through the disputed domain names; (iv) the Respondent registered the disputed domain names significantly after the date of registration of the Complainant’s Trade Marks and/or domains.

The Complainant further contends the disputed domain names were registered and used in bad faith, on the bases: (i) the Respondent registered the disputed domain names significantly after the date of registration of the Complainant’s Trade Marks and/or domains; (ii) the Respondent knew of the Complainant’s brand and business and yet registered the disputed domain names that are confusingly similar to the Complainant’s Trade Marks; (iii) the Respondent’s way of typosquatting in relation to the disputed domain names; (iv) the Respondent registered and used the disputed domain names to confuse Internet users and redirect them to third party websites; (v) the Respondent’s passively holding of the disputed domain names; (vi) the Respondent engaged in a pattern of cybersquatting.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1 Language of Proceeding

According to paragraph 11(a) of the Rules, 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.

Based on the given evidence, there is no agreement between the Complainant and the Respondent regarding the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding principally on the following grounds:

(a) The Complainant and its attorneys are 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. Because the delay would pose continuing risk to the Complainant and unsuspecting consumers seeking the Complainant or its products.

(b) Disputed domain names are comprised of Latin characters.

(c) Disputed domain names redirect to websites containing exclusively non-Chinese content and feature various phrases in English.

(d) None of the terms “Atlantic City Electric”, “BGE”, “Exelon” nor “PEPCO”, which are the dominant portion of the disputed domain names, carry any specific meaning in Chinese language.

(e) The past UDRP Panel considered the totality of the circumstances in allowing a case to proceed in English.

In accordance with paragraph 11(a) of the Rules and taking into consideration paragraph 10(b) and (c) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances:

- the Center has notified the Respondent of the proceeding in English and Chinese;
- the content on the Respondent’s websites are entirely in English; and
- the terms “Atlantic City Electric”, “BGE”, “Exelon” nor “PEPCO”, which are the dominant portion of the disputed domain names.

Further, 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”.

6.2. Preliminary Issue – Multiple Domain Names

The Panel notes that the present Complaint has consolidated five domain name disputes.

According to paragraph 10(e) of the Rules, the Panel has the power to consolidate multiple domain name disputes.

As the registrant for all five of the disputed domain names is the Respondent, the Panel orders consolidation of the disputed domain names in the Complaint.

6.3 Substantive Issues

The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action:

(i) the disputed domain names are identical or confusingly similar to a trade mark in which the Complainant has rights to;

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain names are confusingly similar to the Complainant’s Trade Marks. The Complainant has established its right to the ATLANTIC CITY ELECTRIC, BGE, BGE SMARTENERGY REWARDS, EXELON, and PEPCO Trade Marks by submitting evidence of its registration in US and China.

The disputed domain names <atalnticcityelectric.com>, <bgesmartemergy.com> and <exelconcorp.com> comprise or include purposeful misspelling of Complainant’s ATLANTIC CITY ELECTRIC, BGE, BGE SMARTENERGY REWARDS and EXELON Trade Marks and/or domains. These are classical examples of typosquatting. Although there is an omission of the word “rewards” in the disputed domain name <bgesmartemergy.com>, it remains confusingly similar to the Complainant’s BGE SMARTENERGY REWARDS Trade Mark.

As for the disputed domain names <exelconcorp.com>, <jobsexeloncorp.com> and <pepcownergywiserewards.com>, the Respondent added the terms “corp”, “jobs” and “wnergy wise rewards” to the Complainant’s EXELON and PEPCO Trade Marks. The disputed domain name <exelconcorp.com> is confusingly similar to the Complainant’s primary domain name <exeloncorp.com>; the disputed domain name <jobsexeloncorp.com> is confusingly similar to the Complaint’s career website <jobs.exeloncorp.com>; the disputed domain name <pepcownergywiserewards.com> is confusingly similar to the Complainant’s customer service subdomain <energywiserewards.pepco.com>.

The generic Top-Level Domain is generally disregarded when considering the first element. (see section 11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”))

The Panel notes that the Complainant does not rely on any registered trademarks in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”)).

The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

There is no evidence that the Respondent has any business with or is in any way affiliated with the Complainant, nor that the Respondent is authorized or licensed to use the Complainant’s trade marks or to apply for registration of the disputed domain names. Furthermore, there is no evidence that the Respondent is commonly known by any of the disputed domain names.

There is also no evidence that the Respondent has used or is planning to use the disputed domain names for a bona fide offering of goods or services. In addition, the Respondent has not responded to any of the Complainant’s contentions.

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 Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent.

The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Based on the given evidence, the disputed domain names were registered and are being used in bad faith.

The Panel is satisfied that the Respondent was aware of the Complainant and its various Trade Marks when it registered the disputed domain names. The timing of the registration of the disputed domain names is significantly later than the date when Complainant filed for its Trade Marks, while bearing in mind that the Respondent has no business connection with the Complainant in any manner.

The Respondent uses four of the disputed domain names that link to third-party websites, potentially generating revenue from pay-per-click links that does not constitute bona fide offering of goods or services. The fifth disputed domain name is inactive. In any event, it is well established that the lack of use of the disputed domain name does not prevent a finding of bad faith under the doctrine of passive holding. (See section 3.3 of the WIPO Overview 3.0).

For the above reasons, the Panel finds that the disputed domain names were both registered and have been used in bad faith.

The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy.

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 names, <atalnticcityelectric.com>, <bgesmartemergy.com>, <exelconcorp.com>, <jobsexeloncorp.com> and <pepcownergywiserewards.com> be transferred to the Complainant.

Douglas Clark
Sole Panelist
Date: October 24, 2021

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