WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Averitt Express, Inc. v. 杨智超 (Zhi Chao Yang)
Case No. D2021-0846
1. The Parties
The Complainant is Averitt Express, Inc., United States of America (“United States”), represented by Adams and Reese LLP, United States.
The Respondent is 杨智超 (Zhi Chao Yang), China.
2. The Domain Name and Registrar
The disputed domain name <averittcareeers.com> is registered with West263 International Limited (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 22, 2021. On March 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 23, 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. The Center sent an email communication to the Complainant on April 7, 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 April 7, 2021.
On April 7, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on April 7, 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 in English and Chinese of the Complaint, and the proceedings commenced on April 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 7, 2021.
The Center appointed Rachel Tan as the sole panelist in this matter on June 4, 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 freight transportation and supply chain management provider based in the United States. It operates over 100 locations in the United States and provides freight and other transportation services to over 300 international destinations in 100 countries. It advertises its services through various websites, print media, and other advertising and promotional campaigns.
The Complainant and its predecessors have been using and promoting the AVERITT trade mark in connection with transportation services since 1969. The Complainant owns a number of trade mark registrations for its AVERITT mark in numerous jurisdictions, including the relevant Chinese Registration No. 25252236 registered on July 7, 2018, in class 39 and United States Registration No. 2619908 registered on September 17, 2002, in classes 37, 39, and 41.
The Complainant also owns a range of domain names incorporating the AVERITT mark, including <averitt.com>, <averitt-express.com>, <averittexpress.com>, <averittcareers.com>, etc. In particular, the Complainant operates its principal website at “www.averittexpress.com” for advertising its various transportation and supply chain management services. It also operates a website at “www.averittcareers.com” devoted to recruiting new employees.
The disputed domain name was registered on May 18, 2020, and at the date of this decision, resolves to a parked page in English comprising pay-per-click advertising links that divert Internet users to various websites with different content such as logistic services and truck driver jobs, etc.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to its AVERITT mark as it incorporates the AVERITT mark in its entirety. The disputed domain name differs from the <averittcareers.com> domain only by the addition of a third letter “e” in the misspelled word “careeers”. The addition of “careeers”, which represents a common misspelling of the generic word “careers”, does not prevent the disputed domain name from being confusingly similar to the AVERITT mark. To the contrary, the misspelling seeks to take advantage of the fact that a proportion of Internet users will, in attempting to locate the Complainant’s website at <averittcareers.com>, misspell the word “careers”. The addition of “.com” does not affect the similarity analysis because the suffix is a necessary component of the disputed domain name.
The Complainant further alleges that the Respondent has never been commonly known as “averitt” or “Averittcareeers”. The Respondent is not and has never been a licensee or franchisee of the Complainant. The Respondent has never been authorized by the Complainant to register or use the AVERITT mark or to apply for or use any domain name incorporating the mark. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or in a legitimate noncommercial or fair manner as the disputed domain name directs to a parking page showing pay-per-click advertising links to websites purportedly offering services identical or related to those of the Complainant.
The Complainant finally asserts that it is not plausible that the Respondent could have been unaware of the Complainant at the time of registration. The Complainant and its predecessors have used the AVERITT mark for over 50 years, and the mark is highly distinctive and universally associated with the Complainant. The disputed domain name is currently being used in bad faith to divert Internet users to a commercial parking page with links to identical or related services offered under the AVERITT mark. The Respondent generates unjustified revenues for each click-through of the sponsored links, thereby illegitimately capitalizing on the Complainant’s name and reputation. Further, the Respondent has engaged in a pattern of cybersquatting as “Zhichao Yang” has been the named respondent in at least 50 other UDRP proceedings.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions.
In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement as used by the registrant for the disputed domain name is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding for the reasons summarized below:
(a) the disputed domain name is in Latin characters, rather than Chinese script;
(b) the disputed domain name incorporates a common misspelling of the English word “careers”;
(c) the disputed domain name directs to a commercial parking page showing pay-per-click links, all of which are in English; and
(d) requiring translation of the Amended Complaint and attached annexes from English to Chinese would subject the Complainant to disproportionate expense for translation services and would cause undue delay and inconvenience.
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 Panel having considered the circumstances finds that English shall be the language of this proceeding. The reasons are set out below.
(a) The Complainant is a company based in the United States. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur translation expenses;
(b) The Respondent’s choice of Roman letters combined with a misspelled English word for the disputed domain name, and the English content of the webpage under the disputed domain name, indicates some familiarity with the English language;
(c) Even if the Respondent does not possess a sufficient command of English to understand the Complaint, there were ample opportunities for the Respondent to raise an objection. The Center notified the Parties in English and Chinese of the Complainant’s request for English to be the language of the proceeding, but the Respondent did not protest against this request; and
(d) The Respondent has failed to participate in the proceeding even though the Center sent the notification of the Complaint in English and Chinese, and has been notified of its default.
The Complaint has been submitted in English. No foreseeable procedural benefit may be served by requiring Chinese to be used. On the other hand, the proceeding may proceed expeditiously in English.
Accordingly, the Panel will proceed with issuing this decision in English.
6.2. Substantive Issues
A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has adduced evidence to demonstrate its established rights in the AVERITT mark.
The Panel notes the disputed domain name encompasses the AVERITT mark in its entirety. The positioning of the AVERITT mark in front of the disputed domain name makes it instantly recognizable. In cases where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Moreover, the additional misspelled word “careeers” does not preclude a finding of confusing similarity between the AVERITT mark and the disputed domain name. It is accepted by previous UDRP panels that the addition to the complainant’s trade mark of other terms does not eliminate the confusing similarity of the domain name from the complainant’s trade mark under the first element of the Policy. See section 1.8 of the WIPO Overview 3.0.
Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
In circumstances where the Complainant possesses exclusive rights to the AVERITT mark, whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the burden of production shifts to the Respondent. See section 2.1 of the WIPO Overview 3.0.
The disputed domain name resolves to parked pages comprising pay-per-click advertising links that divert Internet users or jobseekers from the Complainant’s website. Additionally, the pay-per-click links found at the disputed domain name website capitalize on the Complainant’s mark and the similarity between the disputed domain name and the Complainant’s domain name <averittcareers.com>. The Respondent has not provided evidence of a legitimate noncommercial or fair use of the disputed domain name or reasons to justify the choice of the term “averitt” in the disputed domain name. Further, there is no indication to show that the Respondent is commonly known by the disputed domain name or otherwise has rights or legitimate interests in it. In addition, the Complainant has not granted the Respondent a license or authorization to use the Complainant’s AVERITT mark or register the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant’s AVERITT mark had been registered well before the registration of the disputed domain name. Through extensive use and advertising, the Complainant’s AVERITT mark is known throughout the world. Moreover, the term “averitt” is not merely a word. Search results using the key word “averitt” on the search engines direct Internet users to the Complainant and its services, which indicates that an exclusive connection between the AVERITT mark and the Complainant has been established. As such, the Respondent either knew or should have known of the Complainant’s AVERITT mark when registering the disputed domain name or has exercised “the kind of willful blindness that numerous panels have held support a finding of bad faith”. See eBay Inc. v. Renbu Bai, WIPO Case No. D2014-1693; Barclays Bank PLC v. Andrew Barnes, WIPO Case No. D2011-0874.
Section 3.1.4 of the WIPO Overview 3.0 states that “mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trade mark by an unaffiliated entity can by itself create a presumption of bad faith”. In this case, the disputed domain name incorporates the Complainant’s famous AVERITT mark plus the misspelled word “careeers” that are related to the Complainant’s recruitment website, thus, creating a presumption of bad faith.
Section 3.5 of the WIPO Overview 3.0 states that “[p]articularly with respect to ‘automatically’ generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests)”. The Panel notes that the disputed domain name resolves to parked pages comprising pay-per-click advertising links that divert Internet users to various contents such as logistic services and truck driver jobs, etc. The Panel finds the use of the confusingly similar disputed domain name to lure Internet users to websites hosting links to providers of competing services is evidence of bad faith. See Sodexo v. 杨智超 (Zhi Chao Yang), WIPO Case No. D2020-1171.
In addition, the Panel notes that the Respondent appears to be engaged in a pattern of abusive registration having registered other domain names comprising of other third parties’ trade marks. See SODEXO v. Zhichao Yang (杨智超), WIPO Case No. D2020-2286; Sanofi and Sanofi Biotechnology v. 杨智超 (Zhichao Yang), WIPO Case No. D2020-2560; Andrey Ternovskiy dba Chatroulette v. Domain Administrator, See PrivacyGuardian.org / Zhichao Yang, WIPO Case No. D2018-1388.
The Respondent has kept silent in the face of the Complainant’s allegations of bad faith. Taking into account these circumstances, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain name and, considering the Respondent’s lack of rights or legitimate interests, and by registering and using the disputed domain name as discussed above, the Panel is led to conclude that the disputed domain name was registered and is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the third element under paragraph 4(a) 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 <averittcareeers.com> be transferred to the Complainant.
Date: June 17, 2021