WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Milliman, Inc. v. QuanZhong Jun, Quan Zhong Jun (权中俊)
Case No. D2020-0536
1. The Parties
The Complainant is Milliman, Inc., United States of America (“United States”), represented by Adams and Reese LLP, United States.
The Respondent is QuanZhong Jun, Quan Zhong Jun (权中俊), China.
2. The Domain Name and Registrar
The disputed domain name <mlliman.com> is registered with Xin Net Technology Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 4, 2020. On March 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 6, 2020, 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. The Center sent an email communication to the Complainant on March 11, 2020 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 March 16, 2020.
On March 11, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On March 11, 2020, the Complainant confirmed its request that English be the language of the proceeding. 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 in Chinese, of the Complaint, and the proceedings commenced on March 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 14, 2020.
The Center appointed Francine Tan as the sole panelist in this matter on April 23, 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
The Complainant is based in Seattle, Washington and is one of the world’s largest actuarial and consulting firms operating in the areas of employee benefits, investment, property and casualty, healthcare, life and financial services, as well as insurance services. It has been active in this field since 1947.
The Complainant is the owner of the MILLIMAN trade mark. Use of the MILLIMAN & ROBERTSON mark commenced in 1957 and use of the MILLIMAN mark, in 2001. The MILLIMAN mark has been registered in numerous jurisdictions including in China where the Respondent is located. The Complainant has Chinese registrations for the word MILLIMAN – registered on May 14, 2006 (trade mark No. 3838950) and March 28, 2010 (trade mark No. 5853860). In the United States (or the “U.S.”), the earliest registrations obtained date from January 29, 2002 (trade mark Nos. 2535010 and 2535009).
The Complainant advertises its goods and services under the MILLIMAN mark through various print media, advertising and promotional campaigns, and websites including at “www.milliman.com” and “www.millimanbenefits.com”. The Complainant has 62 offices located in Asia, Africa, Europe, the Middle East, North America and Latin America. Millions of U.S. dollars are spent every year in promoting the MILLIMAN-branded goods and services.
The Complainant owns many domain names incorporating the trade mark MILLIMAN. These include <milliman.com>, <milliman.biz>, <milliman.info>, <milliman.net> and <milliman.org>.
The disputed domain name was registered on May 8, 2019 and directs to a commercial parking page with pay-per-click links advertising services such as “Insurance Seattle” and “Insurance Consultants”.
A cease and desist letter was sent on May 23, 2019 to the Registrar’s abuse contact email provided in the WhoIs records, requesting that the disputed domain name be transferred to the Complainant. As at the time of the filing of the Amended Complaint, the disputed domain name continues to direct to the said page with links to websites purportedly offering services identical or related to those of the Complainant.
5. Parties’ Contentions
The disputed domain name is confusingly similar to the Complainant’s MILLIMAN mark. It differs only by the omission of the first letter “i” but remains virtually identical in sound and appearance. It is an obvious intentional misspelling of a trade mark. The disputed domain name contains sufficiently recognizable aspects of the trade mark MILLIMAN. The omission of the letter “i” does not serve to distinguish the disputed domain name from the Complainant’s MILLIMAN mark.
The Respondent has no rights or legitimate interests in respect of the disputed domain name: the Respondent is not known by the name “Mlliman”; the Respondent is not and has never been a licensee of the Complainant; the Respondent has never been authorised by the Complainant to register or use the MILLIMAN mark or to apply to register any domain name incorporating the mark; and the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. Additionally, there could not be any actual or contemplated bona fide or legitimate use of the disputed domain name, in the absence of authorization from the Complainant to use the disputed domain name as MILLIMAN is a well-known mark. (Milliman, Inc. v. PrivacyProtect.org/Telecom Tech Corp., WIPO Case No. D2011-0246; and Milliman, Inc. v. Above.com Domain Privacy/ Transure Enterprise Ltd., WIPO Case No. D2016-1937.)
The disputed domain name was registered and is being used in bad faith. It is not plausible that the Respondent could not have been aware of the Complainant at the time of registration, and this is evidenced by the fact that the Respondent is using the disputed domain name to redirect to a parking page showing pay-per-click advertising links to websites which offer services which are identical or related to those of the Complainant. The Respondent has blatantly typosquatted by his/her choice of a slight variation in the spelling of “milliman”.
The Respondent is using the disputed domain name to attract the Complainant’s clients or to encourage those clients to visit other websites, thereby generating revenues through the links.
Further, there is a pattern of conduct that has been demonstrated by the Respondent which shows bad faith registration and use of the disputed domain name. Reverse WhoIs searches based on the Respondent’s email show over 200 domain names registered to the Respondent wherein a substantial number incorporate common misspellings of third party trade marks. Examples include various forms of misspellings of the trade marks THE FARMER’S DOG and THAT’S MY MORTGAGE.
The pattern of conduct is also evidenced by the fact that the Respondent has been held by UDRP panels to be a typosquatter.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Preliminary Issue: Language of the Proceeding
The Complaint was filed in English whereas the Registration Agreement in this case is in Chinese. The Complainant requested that the language of the proceeding be English, notwithstanding the language of the Registration Agreement. The Complainant submitted these points in support of its request:
(i) undue burdens should not be placed on the parties;
(ii) undue delay should not be caused to the proceeding;
(iii) the disputed domain name is in Latin characters, rather than Chinese script;
(iv) the disputed domain name is a misspelling of the Complainant’s MILLIMAN trade mark and “miliman” has no meaning in Chinese;
(vi) requiring the Complainant to submit English translations of the Amended Complaint and annexes into Chinese would subject the Complainant to significant expense which is disproportionate and cause undue delay and inconvenience.
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.”
Taking into account the points made by the Complainant as well as the many other domain names which the Respondent has registered, which are deliberate misspellings of English words and phrases, the Panel agrees that it would be appropriate for English to be the language of the proceeding.
The fact that the Respondent chose to register English terms (albeit misspellings) shows that he/ she is very comfortable and familiar with the English language. The Respondent, notably, did not respond on this issue of the language of the proceeding. The Panel believes that the Respondent would not be prejudiced if English were the language of the proceeding whereas the financial burden on the Complainant and delay which would be caused, if the Complainant were required to translate the Complaint and supporting documents into the Chinese language, would be out of proportion and not merited in the circumstances of this case. The Panel would have accepted a Response in Chinese, but none was filed.
6.2 Substantive Issues
A. Identical or Confusingly Similar
The Complainant has trade mark rights in MILLIMAN. The disputed domain name is clearly a deliberate misspelling of the word “milliman”. The omission of the letter “i” in the disputed domain name does not remove the confusing similarity (both visually and aurally) to the Complainant’s MILLIMAN trade mark.
The Complainant has therefore satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy indicates how a respondent can demonstrate his/her rights or legitimate interests to the disputed domain name, namely by establishing any of the following circumstances (which list is not exhaustive):
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The general consensus view of UDRP panels is that complainants are only required, in relation to paragraph 4(a)(ii) of the Policy, to establish a prima facie case in support. Thereafter, the burden shifts to the respondent to produce relevant evidence showing that it has rights or legitimate interests in the domain name in dispute. (See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).)
The Panel is persuaded that the Complainant has satisfied its burden of establishing a prima facie case. The Respondent has not rebutted with relevant evidence the Complainant’s prima facie case of there being no relationship between the Complainant and the Respondent, of the Respondent not being commonly known by the name “Mlliman”, and of the Respondent not having been authorised by the Complainant to use or registered the disputed domain name.
In the circumstances and in the absence of contrary evidence, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
“Panels have moreover found the following types of evidence to support a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark: […] (iii) the lack of a respondent’s own rights to or legitimate interests in a domain name, […] (v) redirecting the domain name to the complainant’s (or a competitor’s) website, and (vi) absence of any conceivable good faith use.”
Having found that the Respondent has no rights or legitimate interests in the disputed domain name, the only conclusion that the Panel can arrive at, taking into account:
(i) the pattern of the Respondent’s conduct in registering a variety of misspellings of third-party marks,
(ii) the use of the disputed domain name by the Respondent for a commercial parking page with pay-per-click links advertising services that are identical or related to those of the Complainant, which allows the Respondent to derive monetary benefit from directing Internet users to competing websites,
(iii) the fame of the Complainant’s trade mark,
(iv) the fact that the Complainant’s mark was registered in China long before the date of registration of the disputed domain name,
(v) the fact that “milliman” is not a dictionary word and was obviously targeted by the Respondent to ride off the reputation of the mark and the high chance of typographical errors by Internet users,
(vi) there being no bona fide offering of goods or services by the Respondent, and
(vii) the failure by the Respondent to respond and rebut the arguments of the Complainant,
is that the disputed domain name was registered and is being used in bad faith.
The Complainant has therefore satisfied the requirement of paragraph 4(a)(iii) of the Policy.
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 <mlliman.com> be transferred to the Complainant.
Date: April 26, 2020