WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Hartford Fire Insurance Company v. Hou Guangbin, hou guang bin

Case No. D2014-1593

1. The Parties

Complainant is The Hartford Fire Insurance Company of Hartford, Connecticut, United States of America (“US”), represented by Fross Zelnick Lehrman & Zissu, PC, US.

Respondent is Hou Guangbin, hou guang bin of Shenzhen, Guangdong, China.

2. The Domain Name and Registrar

The disputed domain name <thehartfurd.com> is registered with Beijing Innovative Linkage Technology Ltd. dba dns.com.cn (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 16, 2014. On September 17, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.

On September 19, 2014, the Center transmitted an email to the parties regarding the language of the proceeding in English and Chinese. On September 19, 2014, Respondent submitted a request that Chinese be the language of the proceeding. On the same day, Complainant submitted a request that English be the language of the proceeding.

The Center verified that the 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(a) and 4(a), the Center formally notified Respondent of the Complaint in Chinese and English, and the proceedings commenced on September 29, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 19, 2014. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 20,2014.

The Center appointed Yijun Tian as the sole panelist in this matter on October 29, 2014. 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

A. Complainant

Complainant, the Hartford Fire Insurance Company, is a company incorporated in Hartford, Connecticut, US. It was founded in 1810, and operates one of the largest insurance and financial services business in the US and Canada. It is a leading provider of investment products; life insurance and group and employee benefits; automobile and homeowners insurance; business insurance and reinsurance.

Complainant has exclusive rights in the HARTFORD, THE HARTFORD, and other HARTFORD-inclusive Marks (collectively, the HARTFORD Marks) in relation to its products and service since 1971. Complainant is the exclusive owner of registered trademarks HARTFORD in the US (since 1971, registered May 19, 1981; Exhibit D to the Complaint).

B. Respondent

Respondent is Hou Guangbin, hou guang bin of Shenzhen, Guangdong, China. The disputed domain name <thehartfurd.com> was registered on August 1, 2014, long after the HARTFORD Marks became known.

5. Parties’ Contentions

A. Complainant

(a) The disputed domain name is identical and/or confusingly similar to the HARTFORD Marks.

- Complainant owns strong rights in the HARTFORD Marks. Not only has Complainant demonstrated extensive use of the marks giving rise to common law rights, but it also owns trademark registrations for the mark in the US, which entitles Complainant to a presumption of validity.

- The disputed domain name <thehartfurd.com> is identical to Complainant’s THE HARTFORD Mark, but for the substitution of the letter “U” for the letter “O”.

- When Internet users looking for legitimate services offered by Complainant’s member firms mistakenly type the disputed domain name into the address bar of their Internet browser (e.g. by misspelling/mistyping HARTFORD), they led to Respondent’s link-laden website Exhibits E-F to the Complaint), from which numerous third party websites, including sites of Complainant’s competitors, may be accessed.

- The first element of the three step test set forth by paragraph 4(a) of the Policy has been satisfied, as the disputed domain name is confusingly similar to the HARTFORD Marks.

(b) Respondent has no rights or legitimate interests in the disputed domain name;

- Respondent cannot demonstrated or establish any legitimate interest in the disputed domain name.

- There exists no relationship between Complainant and Respondent that would give rise to any license, permission, or other right by which Respondent could own or use any domain name incorporating Complainant’s famous HARTFORD Marks.

- The disputed domain name is not, nor could it be contended to be, a nickname of Respondent or in any other way identified with or related to legitimate interest of Respondent.

- Respondent has registered the disputed domain name for the purpose of diverting traffic to webpages that have no relationship to Complainant.

- Many of the services advertised and/or promoted on such webpages compete with Complainant’s services. Respondent has profited from diverting Internet traffic intended for Complainant to the sites of these third parties by generating click-through revenue.

- “Use of the domain name to point to other sites in order to collect referral fees cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use”.

- Respondent cannot have any legitimate interest in the disputed domain name, and the second element of the three step test set forth by paragraph 4(a) of the Policy has been satisfied.

(i) Respondent registered the disputed domain name in bad faith.

- The HARTFORD Marks enjoy widespread recognition.

- It is inconceivable that Respondent was unaware of the marks when it registered the disputed domain name.

- Given the fame of the HARTFORD Marks and the fact that the disputed domain name is so obviously connected with Complainant’s famous marks, Respondent’s bad faith may be presumed.

- Respondent was targeting Complainant and the goodwill associated with the HARTFORD Marks when it registered the disputed domain name is further borne out by the fact that Respondent has posted a website with references to Complainant and with hyperlinks to various insurance-related and finance-related websites, which are the core of Complainant’s business under the HARTFORD Marks.

(ii) Respondent is using the disputed domain name in bad faith.

- The format of Respondent’s website at the disputed domain name – with links leading visitors to other commercial sites – strongly suggests that Respondent is obtaining “click-through” revenue from the disputed domain name.

- The fact that many of the featured links are for websites promoting services that compete with Complainant’s services is further evidence of Respondent’s bad faith.

- Respondent is using the disputed domain name for the purpose of profiting from the goodwill associated with the HARTFORD Marks in bad faith under paragraph 4(b)(iv) of the Policy.

- Respondent has registered and used the disputed domain name for the purpose of attracting Internet users, who are otherwise searching for Complainant’s website, or for information on Complainant’s goods and services, to its own website for commercial benefit.

- Respondent seeks to capitalize on a classic form of typosquatting by changing one letter of Complainant’s THE HARTFORD mark so that an Internet user who makes this typographical error when typing in Complainant’s website address (notably, the letter “U” is only two keys away from the letter “O” on the QWERTY keyboard) will be diverted to Respondent’s site instead.

- Typosquatting in its various forms “has been universally condemned in numerous URDP decisions” and is sufficient, by itself, to establish confusing similarity.

- Respondent has provided false contact information. The use of incorrect information “amounts to a failure to identify any legally responsible party – a feature shared with many cybersquatting cases involving fictitious registrant data,” and is indicative of bad faith.

- It is impossible to conceive of any legitimate use to which the disputed domain name could be put by Respondent. Any use of the disputed domain name by Respondent would surely run afoul of the Policy by being an infringement of Complainant’s rights under trademark, unfair competition and dilution laws.

- Respondent registered and is using the disputed domain in bad faith, and the third element of the three step test set forth by paragraph 4(a) of the Policy has been satisfied.

B. Respondent

Respondent did not formally reply to Complainant’s contentions.

6. Discussion and Findings

6.1. Language of the Proceeding

The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceedings should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceedings for the following reasons:

(a) While the Registration Agreement for the Registrar is published in Chinese, the circumstances warrant that the proceedings be conducted in the English language.

(b) As indicated by the word “the”, and given that “Hartfurd” has no meaning in any language as it is clearly just an intentional misspelling of “Hartford”, the disputed domain name is in the English language.

(c) The content of the website associated with the disputed domain name is entirely in English (Exhibits E and F to the Complaint).

(d) These circumstances present strong evidence that Respondent is adept in the English language and warrant that the proceedings be conducted in English.

Respondent did not make any formal submissions with respect to the language of the proceedings. But it did send an email to object to the use of English as the language of the proceedings, and stated “Please use the Chinese language”.

Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceedings 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 proceedings. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the Panel for the proceedings should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case. (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) further states:

“in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and the complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement”. (WIPO Overview 2.0, paragraph 4.3; see also L’Oreal S.A. v. MUNHYUNJA, WIPO Case No. D2003-0585).

The Panel has taken into consideration the facts that Complainant is a company from the US, and Complainant will be spared the burden of working in Chinese as the language of the proceedings. The Panel has also taken into consideration the facts that the website at the disputed domain name includes the English word “the” and Latin characters “hartfurd” (Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).

On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds adequate grounds in the present proceeding to accept Complainant’s request and to proceed in English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name <thehartfurd.com> is registered in Latin characters, rather than Chinese script; (b) the website at the disputed domain name is an English-based website (Exhibits E and F to the Complaint); (c) the website appears to have been directed to users worldwide (particularly English speakers) rather than Chinese speakers; (d) the Center has notified Respondent of the proceedings in both Chinese and English; (e) the Center informed Respondent that it would accept a Response in either English or Chinese.

Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.

6.2. Discussion and Findings

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:

(i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

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

(iii) the disputed domain name has been registered and is being used in bad faith.

On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the HARTFORD Marks (including THE HARTFORD mark) acquired through registration. The HARTFORD Marks have been registered in the US (since 1981). Complainant has a widespread reputation as one of the largest insurance and financial services business in the US and Canada. It is a leading provider of investment products; life insurance and group and employee benefits; automobile and homeowners insurance; business insurance and reinsurance.

Previous UDRP panels have consistently held that a domain name may be identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).

The WIPO Overview 2.0, paragraph 1.10, states: “Consensus view: A domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name.”

The disputed domain name <thehartfurd.com> consists of a misspelling (typosquatting) of “hartfurd” that substitutes the letter “O” for the letter “U”. In the other words, it comprises the most of the characters of THE HARTFORD mark, and it differs from the THE HARTFORD mark only in that it substitutes the letter “O” for the letter “U”. Thus, the Panel finds that the difference is not sufficient to negate the confusing similarity between the disputed domain name and the HARTFORD mark. (See also Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775; and Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971).

The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:

(i) use of, or preparations to use, the disputed domain name in connection with a bona fide offering of goods or services;

(ii) the fact that Respondent has commonly been known by the disputed domain name; or

(iii) legitimate noncommercial or fair use of the disputed domain name.

The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once aC complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut complainant’s contentions. If respondent fails to do so, complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).

Complainant is the exclusive owner of the well-known registered HARTFORD marks in the US and Canada. It was founded in 1810, and operates one of the largest insurance and financial services business in the US and Canada under the trademark with first use of commerce since 1971 (registration since 1981), which precedes Respondent’s registration of the disputed domain name (in August 2014). According to Complainant, Complainant has received numerous awards and honors including the Dalber award for outstanding individual annuities service, and has been listed by Fortune magazine as one of America’s “most admired companies”.

Moreover, Respondent is not an authorized dealer of HARTFORD branded products. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:

(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the words “the hartfurd” in its business operation and design on its website (without disclaimer or other clarifying details). There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the HARTFORD Marks or to apply for or use any domain name incorporating the HARTFORD Marks;

(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. The disputed domain name <thehartfurd.com> was registered on August 1, 2014, long after Complainant’s registrations of the HARTFORD Marks (in the US since 1981). The disputed domain name is identical or confusingly similar to Complainant’s HARTFORD Marks.

(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, it seems that Respondent attempts to attract Internet users to its site for commercial gain. Respondent was in actuality using the website resolved by the disputed domain name to provide multiple links to Complainant’s competitors Exhibits E-F to the Complaint).

The Panel finds that Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name in light of Complainant’s prima facie case. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:

(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or

(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites or location or of a product or service on Respondent’s website or location.

The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent registered and has been using the disputed domain name in bad faith.

a) Registered in Bad Faith

The Panel finds that Complainant has a widespread reputation in the HARTFORD Marks with regard to its products and services. Complainant has registered its HARTFORD Marks in the US (with first use in commerce since 1971 and registration in 1981). As introduced above, according to Complainant, Complainant is one of the largest insurance and financial services business in the US and Canada, and it has received numerous awards and honors including the Dalber award for outstanding individual annuities service, and has been listed by Fortune magazine as one of America’s “most admired companies”. Moreover, Respondent has posted a website with hyperlinks to various insurance-related and finance-related websites, which are the core of Complainant’s business under the HARTFORD Marks. Thus, it is not conceivable to the Panel that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name. The Panel therefore finds that the HARTFORD Mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with Complainant. (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).

Moreover, Respondent has chosen not to formally respond to Complainant’s allegations. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of Respondent to respond to the Complaint further supports an inference of bad faith”. (See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787). And “it is well settled under the Policy that the practice of typosquatting, in and of itself, constitutes bad faith registration” (see Amazon.com, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman, WIPO Case No. D2006-0517; ESPN, Inc. v. XC2, WIPO Case No. D2005-0444). Thus, the Panel concludes that the disputed domain name was registered in bad faith with the intent to create an impression of an association with Complainant’s HARTFORD branded products

b) Used in Bad Faith

Complainant has adduced evidence to prove that by using a confusingly similar disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites”. Complainant claimed that “Respondent has registered and used the disputed domain name for the purpose of attracting Internet users, who are otherwise searching for The Hartford’s website, or for information on The Hartford’s goods and services, to its own website for commercial benefit”.

To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that that intention existed. (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, supra).

Given the widespread reputation of the HARTFORD Marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a likelihood of confusion as to source, sponsorship, affiliation or endorsement of the website to which the disputed domain name is resolved. In other words, Respondent has through the use of a confusingly similar disputed domain name created a likelihood of confusion with the HARTFORD Marks. Noting also that apparently no clarification as to Respondent’s relationship to Complainant is made on the website of homepage of the disputed domain name, potential Internet users are likely led to believe that the website at <thehartfurd.com> is either Complainant’s site or the site of official authorized agents of Complainant, while it is not. Moreover, Respondent has not responded formally to the Complaint. The Panel therefore concludes that the disputed domain name was used by Respondent in bad faith.

In summary, Respondent, by choosing to register and use the disputed domain name which is confusingly similar to Complainant’s trademark, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent on the website to which the disputed domain name resolves are indicative of registration and use of the disputed domain name in bad faith.

The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.

7. Decision

For all 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 <thehartfurd.com> be transferred to Complainant.

Yijun Tian
Sole Panelist
Dated: November 24, 2014