Westmore · UDRP DecisionMichelin.ink
The Panel ordered transfer of <michelin.ink>. It found the domain confusingly similar to the MICHELIN mark because it incorporated the mark in its entirety; found no rights or legitimate interests based on the absence of affiliation, authorization, or evidence that the Respondent was commonly known by the domain; and found bad-faith registration and use based on the mark's notoriety, the domain's later registration, the resulting inference that the Respondent knew or should have known of the Complainant's rights, the domain's offer-for-sale page, and the absence of demonstrated bona fide use or preparations for such use.
The timeline behind michelin.ink
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The decision illustrates a straightforward UDRP transfer involving exact incorporation of a notorious mark, an unrebutted absence of authorization or respondent identity corresponding to the domain, and a resolving page offering the domain for sale. It also shows that a panel may select English despite a Chinese registration agreement when the website contains some English and the respondent does not object.
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 Compagnie Générale des Etablissements Michelin v. DongZhuo Case No. D2018-1294 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France. The Respondent is DongZhuo of Beijing, China. 2. The Domain Name and Registrar The disputed domain name <michelin.ink> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2018. On June 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 12, 2018, 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 June 14, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on the same day. 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on June 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2018. The Center appointed Chiang Ling Li as the sole panelist in this matter on July 16, 2018. 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 Compagnie Générale des Etablissements Michelin. The Respondent is DongZhuo. The disputed domain name is <michelin.ink>, which was registered on November 6, 2017. The disputed domain name currently resolves to a website offering to sell the disputed domain name. 5. Parties’ Contentions A. Complainant Firstly, the Complainant contends that the disputed domain name is identical with or at least confusingly similar to the Complainant’s trademark. Secondly, the Complainant states that the Respondent has no rights or legitimate interests in the disputed domain name. According to the Complainant, the Respondent is neither known by the name of “Michelin” nor affiliated with the Complainant in any way, nor has he been authorized or licensed by the Complainant to use and register its mark, or to seek registration of any domain name incorporating the aforesaid mark. The Complainant emphasizes that the Respondent has no prior rights or legitimate interests in the disputed domain name as the registration of the MICHELIN marks preceded the registration of the disputed domain name for years. Thirdly, the Complainant contends that the disputed domain name was registered and is being used in bad faith. According to the Complainant, it is implausible that the Respondent was unaware of the Complainant when registering the disputed domain name. This is because the Complainant is well−known throughout the world, including China. As for use in bad faith, the Complainant asserts that the purpose of the reproduction of its well-known trademark is to attract Internet users to the website, which cannot be regarded as fair use or use in good faith. The Complainant also believes that the disputed domain name was registered and passively held by the Respondent in order to prevent the Complainant from using its trademarks in the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy places a burden on the Complainant to prove the presence of three separate elements. The three elements can be summarized as follows: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The requested remedy may only be granted if the above criteria are met. A. Preliminary Issue: Language of the Proceeding The Complainant requested English to be the language of the administrative proceeding. The Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that “[u]nless 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 WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”) provides that “(iii) any content on the webpage under the disputed domain name” and “(vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language” are scenarios that warrant the proceedings be conducted in languages other than that of the Registration Agreement. The Panel finds that the content of the website under the disputed domain name sets out the Respondent’s contact details. Some English is used on the website. Taking all the circumstances into account, the Panel finds that it is appropriate to exercise its discretion and allow the proceeding to be conducted in English as per paragraph 11(a) of the Rules. B. Identical or Confusingly Similar The disputed domain name contains the MICHELIN mark in its entirety. Moreover, the adjunction of a generic Top-Level Domain is irrelevant for a finding of confusing similarity. Therefore, the Panel finds that the disputed domain name is confusingly similar to the MICHELIN mark and as a consequence, the Complaint meets the requirement of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests The Panel notes the following circumstances presented in the Complaint in relation to any possible rights or legitimate interests of the Respondent in the disputed domain name: (a) the Respondent is not affiliated or related to the Complainant in any way; (b) the Respondent is neither licensed nor authorized by the Complainant to use the MICHELIN mark; and (c) there is no evidence that the Respondent has been commonly known by the disputed domain name. The Respondent did not challenge the above contentions of the Complainant. Accordingly, the Panel concludes that the second element of paragraph 4(a) of the Policy is satisfied. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove bad faith in registration and use of the disputed domain name. Firstly, the disputed domain name was registered in 2017, which is years after the MICHELIN mark was registered. The notoriety of the MICHELIN mark and the similarity of the disputed domain name with the mark indicate that the Respondent knew or should have known about the Complainant’s rights when registering the disputed domain name. Secondly, the disputed domain name currently resolves to a page stating that the disputed domain name is for sale. Thirdly, the Respondent has not demonstrated use of, or demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services so long after registration. The Panel finds under the circumstances of this case that the third element of paragraph 4(a) of the Policy is satisfied. 7. Decision For the above reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <michelin.ink> be transferred to the Complainant. Chiang Ling Li Sole Panelist Date: July 29, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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