Westmore · UDRP DecisionLitierecheval.com
The Panel ordered transfer of <litierecheval.com> to ECOBOX. It found the domain confusingly similar to the French trademark WWW.LITIERE-CHEVAL.COM because removing the hyphen did not avoid similarity and “www” was implicit. The Respondent lacked rights or legitimate interests, and the domain’s use for unrelated pornographic content supported findings of bad-faith registration and use. The Panel inferred that the Respondent knew of the Complainant’s rights because the domain closely imitated the mark and search results referenced the Complainant’s longstanding website.
The timeline behind litierecheval.com
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 litierecheval.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a domain that removes only a hyphen from a domain-form trademark can remain confusingly similar, and how use for unrelated pornographic content may reinforce both the absence of legitimate interests and bad faith. The decision also shows that a panel may proceed in English despite a Chinese registration agreement where bilingual notice was given, the respondent remained silent, and translation would create undue burden and 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 ECOBOX v. Lu Chen Case No. D2019-0945 1. The Parties The Complainant is ECOBOX, France, represented by Nameshield, France. The Respondent is Lu Chen, China. 2. The Domain Name and Registrar The disputed domain name <litierecheval.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 April 25, 2019. On April 25, 2019, the Center transmitted by email to the Registrar a request registrar verification in connection with the disputed domain name. On April 26, 2019, 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 30, 2019 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 on the same day. On April 30, 2019, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested 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 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 May 6, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2019. The Respondent did not submit any response. Accordingly, the Center notified of the Respondent’s default on May 27, 2019. The Center appointed Joseph Simone as the sole panelist in this matter on June 3, 2019. 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 an online seller of mulching for horses. It is the owner of the trademark WWW.LITIERE-CHEVAL.COM (French trademark Reg. No. 4126732, obtained on October 14, 2014), covering goods in Classes 27 and 31 including wall hangings not of textile, wall paper, gymnastic mats, car mats and food for animals. It operates through its website at “www.litiere-cheval.com”. The disputed domain name was registered on December 31, 2018, and currently resolves to a porn site in Chinese language. 5. Parties’ Contentions A. Complainant Identical or confusingly similar The Complainant contends that the disputed domain name is identical or confusingly similar to the mark WWW.LITIERE-CHEVAL.COM in which it has rights. The omission of the hyphen “-” is not sufficient to avoid the likelihood of confusion. Rights or legitimate interests The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name for the following reasons. The Complainant contends that the Respondent “Luchen” is not commonly known by the disputed domain name and is not affiliated with nor authorized by the Complainant to make any use of the Complainant’s trademark or apply for the disputed domain name. The Complainant also submits that the Respondent is not making a bona fide offering of goods or services or using the disputed domain name for a legitimate noncommercial or fair use, given that it resolves to a website hosting adult content. Registered and used in bad faith The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith for the following reasons. The disputed domain name is composed of the French terms “litiere”, meaning “mulching”, and “cheval”, meaning “horse”. Due to the uniqueness of the Complainant’s trademark, it is inconceivable that the Respondent could have registered the disputed domain name without actual knowledge of the Complainant’s rights in the mark. Furthermore, use of a domain name to feature sexual content may indicate bad faith under the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Procedural Issues In accordance with paragraph 11 of the Rules: “[…] 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.” In this case, the language of the Registration Agreement is in Chinese. However, the Complainant filed the Complaint in English and requested that English be the language of the proceeding because the disputed domain name is in Roman characters and not Chinese script, and in order to proceed in Chinese, the Complainant would have to retain specialized translation services at a cost likely to be higher than the overall cost of proceedings. The Panel agrees that requiring the Complainant to translate the Complaint would cause undue burden and delay. The Respondent was notified in both English and Chinese regarding the nature of the proceeding and issue of language and did not express a language preference or submit a Response. Given this and noting the aim of conducting proceedings with due expedition and in a cost-efficient manner, the Panel will proceed in English. 6.2 Substantive Issues A. Identical or Confusingly Similar Under the first element of the Policy, the Complainant must prove that the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant has rights (paragraph 4(a)(i) of the Policy). The Complainant has submitted evidence of a trademark registration for the mark WWW.LITIERE-CHEVAL.COM. Under the Policy, this satisfies the requirement that the Complainant has rights to the trademark. The test for identical or confusing similarity involves a side-by-side comparison of the disputed domain name with the trademark. A domain name incorporating the entirety or dominant feature of the relevant mark will normally satisfy the threshold test ( Britannia Building Society v. Britannia Fraud Prevention , WIPO Case No. D2001-0505 ; V&S Vin & Sprit AB v. Ooar Supplies , WIPO Case No. D2004-0962 ). In this case, the disputed domain name <litierecheval.com> is almost identical to the trademark WWW.LITIERE-CHEVAL.COM. As the Complainant contends, the omission of the hyphen does not prevent a finding of confusing similarity. The subdomain “www” is also implicit in the disputed domain name. Accordingly, the Panel finds the disputed domain name is confusingly similar to the Complainant’s mark, and the first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests Under the second element, the Complainant must demonstrate that the Respondent should be deemed as having no rights or legitimate interests in respect of the disputed domain name that is the subject of the Complaint (paragraph 4(a)(ii) of the Policy). The Panel accepts that the Respondent is not authorized, affiliated with or licensed by the Complainant. Nor is there any evidence to suggest that the Complainant is commonly known by the disputed domain name. In light of this, the Respondent cannot be making a bona fide or noncommercial use of the disputed domain name. The pornographic content is not related to either the Complainant or horse litter, and the Respondent has not presented any legitimate reason for its registration of the disputed domain name. Thus, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Finally, the Complainant must prove that the disputed domain name was registered and is being used in bad faith (paragraph 4(a)(iii) of the Policy). A strong inference of bad faith can arise where the Respondent “knew or should have known” of the Complainant’s trademark rights ( Volkswagen AG v. Jan-Iver Levsen , WIPO Case No. D2015-0069 ; Yahoo! Inc. v. Yahoo-Asian Company Limited , WIPO Case No. D2001-0051 ). In this case, the disputed domain name so closely imitates the Complainant’s trademark that the Respondent must have had actual knowledge of the Complainant’s rights when registering it. At the very least, constructive knowledge can be inferred given that Baidu and Google searches for “litiere cheval” return results referencing the Complainant’s website, which was registered in 2005 and has been in operation for many years prior to the registration of the disputed domain name. The use of the disputed domain name to disseminate pornographic content appears to be for no other reason than to attract potential customers of the Complainant to the Respondent’s website, from which it potentially generates revenue. This is disruptive to the Complainant’s business and tarnishes the Complainant’s trademark. Therefore, the Panel finds the disputed domain name was registered and is being used in bad faith. 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 <litierecheval.com> be transferred to the Complainant. Joseph Simone Sole Panelist Date: June 17, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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