WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
John Hancock Life Insurance Company (U.S.A.) v. yinsi baohu yi kai qi (Hidden by Whois Privacy Protection Service) / Deng Guo Sen（邓国森）
Case No. D2017-1981
1. The Parties
The Complainant is John Hancock Life Insurance Company (U.S.A.) of Boston, Massachusetts, United States of America ("United States" or "US"), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is yinsi baohu yi kai qi (Hidden by Whois Privacy Protection Service) of Chengdu, Sichuan, China / Deng Guo Sen（邓国森）Hangzhou, Zhejiang, China.
2. The Domain Names and Registrar
The disputed domain names <jhnhancock.com>, <jihnhancock.com>, <johmhancock.com>, <johnhancck.com> and <johnhancick.com> are registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 11, 2017. On October 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 12, 2017, 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 October 18, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on October 20, 2017.
On October 18, 2017, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On October 23, 2017, the Complainant confirmed its request for English to be the language of the proceeding as set out in the Complaint. 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 Chinese and English of the Complaint, and the proceeding commenced on October 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 16, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 17, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on November 24, 2017. 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 company incorporated in the State of Massachusetts in the United States, and is the owner of numerous registrations in jurisdictions around the world for the trade mark JOHN HANCOCK (the "Trade Mark"), including United States trade mark registration number 557,033, registered since April 1, 1952.
The Complainant has been using the Trade Mark in the United States since 1862, and internationally since the early 1990s, in connection with a wide range of insurance services.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain names were all registered on the same date, January 19, 2017.
D. The Website at the Disputed Domain Name
The disputed domain names are resolved to English language websites which provide sponsored links to insurance service related websites (the "Websites").
5. Parties' Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith.
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 Agreements for the disputed domain names 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 in particular the fact the contents of each of the Websites is entirely in English.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
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 English. 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 Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain names each consist of common, obvious, or intentional misspellings of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.9).
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 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 names 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 names, 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 names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Websites, which, without the Complainant's authorisation, provide sponsored links to third-party websites relating to insurance services, in direct competition with those provided by the Complainant under the Trade Mark.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
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 names.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondent's use of the Websites in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. The Respondent has registered and used the disputed domain names in order to generate pay-per-click revenue via the sponsored links on the Websites. The evidence on the record indicates, accordingly, that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain names.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith.
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 <jhnhancock.com>, <jihnhancock.com>, <johmhancock.com>, <johnhancck.com> and <johnhancick.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: December 8, 2017