Delaval.top

The timeline behind delaval.top

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

ARBITRATION AN D MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Delaval Holding AB v. Ding Dan Yang (丁丹阳) Case No. D2023-4347 1. The Parties The Complainant is Delaval Holding AB, Sweden, represented by Aera A/S, Denmark. The Respondent is Ding Dan Yang (丁丹阳), China. 2. The Domain Name and Registrar The disputed domain name <delaval.top> 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 October 19, 2023. On October 20, 2023, the Center transmitted by email to the Registrar a request f or registrar verif ication in connection with the disputed domain name. On October 23, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact inf ormation f or the disputed domain name which dif f ered f rom the named Respondent (Hidden contact inf ormation) and contact inf ormation in the Complaint. The Center sent an email communication to the Complainant on October 25, 2023, providing the registrant and contact inf ormation disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant f iled an amended Complaint in English on October 30, 2023. On October 25, 2023, the Center inf ormed the parties in Chinese and English, that the language of the registration agreement for the disputed domain name is Chinese. On October 29, 2023, the Complainant conf irmed its request that English be the language of the proceeding. The Respondent did not submit any comment on the Complainant’s submission. The Center verif ied that the Complaint together with the amended Complaint satisf ied the f ormal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” o r “UDRP”), the Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Supplemental Rules”). page 2 In accordance with the Rules, paragraphs 2 and 4, the Center formally notif ied the Respondent in Chinese and English of the Complaint, and the proceedings commenced on October 31, 2023. In accordance with the Rules, paragraph 5, the due date f or Response was November 20, 2023. The Respondent did not submit any response. Accordingly, the Center notif ied the Respondent’s def ault on November 21, 2023. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on December 1, 2023. The Panel f inds 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 DeLaval Group is a full-service supplier to dairy farmers, headquartered in Sweden. The Complainant develops, manufactures and markets equipment and complete systems f or milk production and animal husbandry worldwide. The company was f ounded in 1883 and has grown into a world leading company within its f ield, employs more than 4,500 people and is operative in more than 100 countries worldwide. The Complainant is the proprietor of an international trademark portfolio for the DELAVAL marks, including, but not limited to European Union Trade Mark Registration f or the word mark DELAVAL with registration number 001785583, registered on October 16, 2002 and International Trademark Registration f or the word mark DELAVAL, with registration number 748395, registered on July 27, 2000. The Complainant also has a strong online presence and is the owner of a large domain name portfolio comprising more than 150 domain name registrations containing the mark DELAVAL. The disputed domain name was registered on May 16, 2023. Based on the Complainant’s evidence, it previously resolved to a website prominently displaying the mark DELAVAL and the Complainant’s copyrighted material. However, on the date of this Decision, the Panel notes that the disputed domain name directs to an inactive website. 5. Parties’ Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy f or a transf er of the disputed domain name. Notably, the Complainant contends that the disputed domain name is identical to its trademarks f or DELAVAL, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad f aith. The Complainant claims that its trademarks are intensively used and provides printouts of its official website and of its marketing and related materials. The Complainant also refers to prior decisions under the Policy which have recognized the reputation of the Complainant and its trademarks (see f or instance DeLaval Holding AB v. Registration Private, Domains by Proxy LLL/craig Kennedy, WIPO Case No . D2015-2135 ). Moreover, the Complainant provides evidence that the disputed domain name is linked to an active website impersonating the Complainant by prominently displaying the mark DELAVAL and the Complainant’s copyrighted material. The Complainant further claims that the Respondent is using YouTube channels to direct users to the disputed domain name. In this context, the Complainant also essentially argues that the Respondent is unlawf ully misrepresenting its website as operated by the Complainant, by using the Complainant’s trademarks and copyrighted works for commercial gain. The Complainant also contends that the Respondent is using the disputed domain name in a phishing scheme. The Complainant essentially contends that the registration and use of the disputed domain name in such circumstances constitutes registration and use in bad f aith. page 3 The Complainant requests the transf er of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issue: Language of the Proceeding The language of the Registration Agreement f or the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specif ied otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The Complaint was filed in English. The Complainant requested that the language of the proceeding be English for several reasons, including the fact that the disputed domain name is written in Latin characters and that the website at the disputed domain name gave the impression of originating f rom the Complainant as the graphical setup was copied from the Complainant’s website, the fact that the Complainant is unable to communicate in Chinese and hence the translation of the Complaint would unf airly be a disadvantage and burden f or the Complainant which also will delay the proceedings and adjudication of this matter. The Respondent did not make any specific submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the p roposed language, time and costs (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0 ”), section 4.5.1). Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Issues A. Identical or Confusingly Similar It is well accepted that the f irst element f unctions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. WIPO Overview 3.0 , section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark o r service mark f or the purposes of the Policy. WIPO Overview 3.0 , section 1.2.1. The Panel f inds the entirety of the mark is reproduced within the disputed domain name with no added elements. Accordingly, the disputed domain name is identical to the mark f or the purposes of the Policy. WIPO Overview 3.0 , section 1.7. Based on the available record, the Panel f inds the f irst element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. page 4 Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is of ten primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come f orward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent f ails to come f orward with such relevant evidence, the complainant is deemed to have satisf ied the second element. WIPO Overview 3.0 , section 2.1. Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant’s prima facie showing and has not come f orward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Upon review of the facts of the case, the Complainant provides evidence that the disputed domain name was linked to an active website impersonating the Complainant by prominently displaying the mark DELAVAL and displaying the Complainant’s copyrighted material. The Panel also provides evidence from which it appears that the Respondent was using the disputed domain name in a phishing scheme. Panels have held that the use of a domain name f or illegal activity, in this case phishing and impersonation/passing off, can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. However, the Panel notes that on the date of this Decision, the disputed domain name directs to an inactive website. In this regard, the Panel finds that holding a domain name passively, without making any use of it, also does not confer any rights or legitimate interests in the disputed domain name on the Respondent (see in this regard earlier UDRP decisions such as Bollore SE v. 赵竹飞 (Zhao Zhu Fei), WIPO Case No . D2020-0691 and Vente-Privee.Com and Vente-Privee.com IP S.à.r.l. v. 崔郡 (jun cui), WIPO Case No . D2021-1685). Based on the available record, the Panel f inds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that, f or the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad f aith. In the present case, the Panel notes that the Respondent has registered a domain name which is identical to the Complainant’s internationally well-known, intensely used and distinctive trademarks (see also earlier decisions under the Policy such as DeLaval Holding AB v. Registration Private, Domains by Proxy LLL/craig Kennedy, WIPO Cas e No . D2015-2135 ). The Panel deducts from this fact that by registering the disputed domain name, the Respondent deliberately and consciously targeted the Complainant’s prior trademarks f or DELEVAL. The Panel f inds that this creates a presumption of bad faith. In this regard, the Panel ref ers to the WIPO Overview 3.0, section 3.1.4, which states “[p]anels have consistently f ound that the 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 f amous or widely-known trademark by an unaf f iliated entity can by itself create a presumption of bad f aith.” The Panel also notes that the Complainant’s trademarks in this case predate the registration date of the disputed domain name by several years, and that the Respondent could not have been reasonably unaware of them. The Panel considers that the Respondent has intentionally and opportunistically targeted the Complainant’s trademark f or DELEVAL. The Panel deducts from these efforts to consciously target the Complainant’s p rio r reg istered trad emarks that the Respondent knew, or at least should have known, of the existence of the Complainant’s trademarks page 5 at the time of registering the disputed domain name. The Panel also notes that even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned prior rights in its trademarks for D ELEVAL. In the Panel’s view, these elements clearly indicate bad f aith on the part of the Respondent, and the Panel theref ore f inds that it has been demonstrated that the Respondent registered the d isputed domain name in bad f aith. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad f aith. WIPO Overview 3.0 , section 3.2.1. The Panel notes that according to the Complainant’s evidence the disputed domain name was linked to an active website impersonating the Complainant by prominently displaying the mark DELAVAL and by displaying the Complainant’s copyrighted material. The Panel therefore considers that the Respondent has used the disputed domain name to intentionally attract, for commercial gain, Internet users to such web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of such web site (Paragraph 4(b)(iv) of the Policy). However, the Panel notes that on the date of this Decision, the disputed domain name directs to an inactive website. Panels have f ound that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a f inding of bad faith under the doctrine of passive holding. Having reviewed the available record, the Panel f inds the non-use of the disputed domain name does not prevent a f inding of bad f aith in the circumstances of this proceeding. Although panelists will look at the totality of the circumstances in each case, f actors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-f aith use, and (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement). WIPO Overview 3.0 , section 3.3. Having reviewed the available record, the Panel notes the distinctiveness and reputation of the Complainant’s trademark, the composition of the disputed domain name and the unlikelihood of any bona fide use of the disputed domain name by the Respondent, and f inds that in the circumstances of this case the passive holding of the disputed domain name does not prevent a f inding of bad f aith under the Policy. Based on the available record, the Panel finds that the Complainant has established the third element of the Policy. 7. Decision For the f oregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <delaval.top> be transf erred to the Complainant. /Deanna Wong Wai Man/ Deanna Wong Wai Man Sole Panelist Date: December 15, 2023

Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.