Westmore · UDRP DecisionXn--gmq48wd16c.xn--czru2d
The Panel ordered transfer of <人头马.商城>. It found the domain identical to the Complainant’s registered 人头马 mark apart from the “.商城” gTLD, found no rights or legitimate interests after the Respondent failed to rebut the Complainant’s prima facie case, and found bad-faith registration and use despite the domain’s inactivity. The Panel relied particularly on the impossibility it perceived of a non-confusing use and the Respondent’s registration of numerous other domains incorporating well-known brands.
The timeline behind xn--gmq48wd16c.xn--czru2d
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind xn--gmq48wd16c.xn--czru2d — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates how exact reproduction of a well-known Chinese-character mark, passive holding, respondent default, and a pattern of other brand-formative registrations can combine to satisfy all three UDRP elements. It also shows a panel permitting English despite a Chinese registration agreement where the respondent did not object and translation was considered an unnecessary delay.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION E. Remy Martin & Co v. 邱子皓 Case No. D2014-1652 1. The Parties The Complainant is E. Remy Martin & Co of Cognac, France, represented by Nameshield, France. The Respondent is 邱子皓 of Shanghai, China. 2. The Domain Name and Registrar The disputed domain name <人头马.商城> is registered with Beijing Guoxu Network Technology Co., Ltd. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2014. On September 24, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 11, 20 and 27, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On October 28, 2014, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On October 30, 2014, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date. 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 the Respondent of the Complaint in both English and Chinese, and the proceedings commenced on November 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 24, 2014. The Center appointed Douglas Clark as the sole panelist in this matter on December 10, 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 The Complainant is a company incorporated in France producing and selling cognacs and liquors. It is the owner of registrations in China for the trademark人头马 (this trademark is the Chinese translation of REMY MARTIN), the earliest registration dating from April 28, 1997. The Trademark has been recognized as a well-known trademark in China by the Trademark Office of the State Administration for Industry and Commerce of the People’s Republic of China. The Respondent is an individual resident in China. The disputed domain name was registered on August 25, 2014. 5. Parties’ Contentions A. Complainant The Complainant’s contentions are set out below. The Complainant submits that the disputed domain name <人头马.商城> consists of the trademark 人头马 and the generic Top-Level Domains (“gTLD”) “.商城”. The disputed domain name is, therefore, other than the gTLD, identical to the Complainant’s trademark. The Complainant further submits that the Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the name. It has not received any consent or license from the Complainant to use the Complainant’s trademark. The Complainant submits that the disputed domain name was registered and is being used in bad faith with the intention of confusing Internet users as to some link between the disputed domain name and the Complainant. The Complainant supports this by providing evidence that the Respondent has registered numerous other domain names incorporating well known trademarks, including: <biotherm.商城>, <clarins.商城>, <hugoboss.商城>, <lancome.商城>, <loreal.商城>, <shiseido.商城>, and <宝嘉丽.商城>. The latter domain name is the Chinese translation of Bulgari. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Language of Proceedings The language of the Registration Agreement for the disputed domain name is Chinese. 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”. The Complainant requested the language of proceedings to be English on the grounds English is the most widely used language in international relations; that the Complainant could not gather any further information about the Respondent because the page the disputed domain name resolves to is inactive and the Complainant, based in France, has no knowledge of Chinese. The Center made a preliminary determination to: 1) accept the Complaint as filed in English; 2) accept a Response in either English or Chinese; 3) appoint a Panel familiar with both languages mentioned above, if available. The final determination of the language of the proceeding lies with this Panel. 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.” Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter. The availability of new gTLDs is creating many more opportunities for cybersquatting which will stretch the resources of many brand owners. In this case, the Respondent has apparently registered numerous domain names incorporating well known marks under the new “.商城” gTLD. These factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. Substantive decision The Panel finds that this is a clear case of domain name hijacking that the UDRP was designed to stop. The Panel agrees fully with the Complainant’s arguments and accordingly does not consider it necessary to write a long decision. A. Identical or Confusingly Similar The disputed domain name is made up of the Complainant’s registered trademark人头马, and the gTLD “.商城”. Other than the gTLD, it is identical to the Complainant’s registered trademark. The first element of the Policy is made out. B. Rights or Legitimate Interests The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. The Panel finds that the second element of the Policy is made out. C. Registered and Used in Bad Faith The Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith. Sub-paragraph 4(b)(iv) of the Policy provides that a registrant has registered and is using a domain name in bad faith where: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” While the disputed domain names have not yet been used, there is no possible use that the domain names could be used for other than to create confusion to that a website under the domain name is in some way related to the Complainant. (See paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition). The fact that the Respondent has registered numerous other domain names incorporating famous brands also points strongly to the disputed domain name having been registered in bad faith. The Panel finds that the third element of the Policy is made out. 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 name <人头马.商城> be transferred to the Complainant. Douglas Clark Sole Panelist Date: December 28, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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