The Complainant is Novozymes A/S, Bagsvaerd, Denmark, internally represented.
The Respondent is Wenying Wang, Hebeisheng, People's Republic of China.
The Disputed Domain Name <novozymes.mobi> is registered with HiChina Zhicheng Technology Ltd.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2009. On May 19, 2009, the Center transmitted by email to HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the Disputed Domain Name. On May 20, 2009, HiChina Zhicheng Technology Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On May 25, 2009, the Center transmitted an email communication to the parties concerning the language of proceeding in Chinese and in English. On the same day, the Complainant submitted a request that English be the language of proceeding. The Respondent did not comment on the language of proceeding by the 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, and the proceedings commenced on June 3, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 24, 2009.
The Center appointed Kar Liang Soh as the sole panelist in this matter on June 30, 2009. 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.
The Complainant, a biotech-based company, owns trade mark registrations incorporating the word NOVOZYMES in over 90 jurisdictions around the world, including the following international trade mark registrations which designate China and Denmark, among other jurisdictions:
Trade Mark No.
April 18, 2000
May 3, 2000
July 11, 2002
September 12, 2007
The Complainant also owns many registrations under various generic and country code TLDs for the domain name “novozymes”, including <novozymes.asia>, <novozymes.cn>, <novozymes.com>, <novozymes.info> and <novozymes.biz>.
The Disputed Domain Name was registered on April 4, 2009, about 9 years after international trade mark registration No. 733758 was registered.
The Complainant contends that:
(1) The Disputed Domain Name is identical to the Complainant's trade mark NOVOZYMES;
(2) The Respondent is a cyber-squatter who has not acquired any trade mark rights in the word novozymes, and has not been licensed or permitted to use the Complainant's trade marks or register any domain name incorporating the word “novozymes”. The Respondent has no relationship with the Complainant, is not commonly known by the Disputed Domain Name, and there is no evidence that the Respondent uses the Disputed Domain Name in connection with a bona fide offering of goods or services.
(3) The Respondent must be aware of the strong reputation of the Complainant's trade mark NOVOZYMES and has registered the Disputed Domain Name in bad faith for the purpose of creating an impression of an association with the Complainant.
The Respondent did not reply to the Complainant's contentions.
Pursuant to paragraph 11(a) of the Rules, the default language of the proceedings should be Chinese because the Registration Agreement is in Chinese. However, the Panel may determine the language of the proceedings having regard to the circumstances. It is established by many previous panel decisions that in determining the language of the proceedings, the Panel must ensure fairness to the Parties and keep the proceedings cost-efficient and expeditious to avoid undue burden on the Parties or delay to the proceedings (e.g., Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293).
The Complainant submits that English should be the language of the proceedings for the following reasons:
(1) The Respondent is familiar with English having regard to the Respondent's use of English on the website resolved from the Disputed Domain Name;
(2) Conducting the proceedings in Chinese would be very burdensome to the Complainant which is based in Europe; and
(3) The Respondent is a cyber-squatter with no legitimate interests in the Disputed Domain Name.
The use of English on the website resolved from the Disputed Domain Name does suggest that the Respondent is at least comfortable with the use of English. The Respondent has failed to respond to the Complainant, otherwise contest the proceedings, and/or object to the Complainant's request for English to be the language of the proceedings. Having regard to the Complainant's submissions and the importance of expeditious disposition of the proceedings, the Respondent is deemed to accept English as the language of the proceedings. The Panel further notes that the Center's all communications have been in English and Chinese.
In accordance with paragraph 11(a) of the Rules the Panel holds that English be adopted as the language of the proceedings.
Paragraph 4(a) of the Policy requires the Complainant to show that:
(1) The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(2) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(3) The Disputed Domain Name has been registered and is being used in bad faith.
NOVOZYMES is a trade mark in which the Complainant has rights. This is supported by the various trade mark registrations submitted by the Complainant. The Disputed Domain Name is identical to the Complainant's trade mark NOVOZYMES.
NOVOZYMES, as a trade mark, pre-dates the Disputed Domain Name by about 9 years. As such, the Disputed Domain Name is identical to a trade mark in which the Complainant has rights and the Panel is satisfied that the first limb of paragraph 4(a) of the Policy has been made out.
The Respondent has chosen not to refute the Complainant's various assertions that the Respondent has no trade mark rights in the word novozymes as an owner or licensee of the Complainant's. The evidence of the Respondent's website under the Disputed Domain Name, even though limited, indicates that the Respondent has not made any bona fide effort to offer goods or services. A prima facie inference that the Respondent has no rights or legitimate interests in the Disputed Domain Name is raised.
By not responding to the Complaint, the Respondent has failed to justify a right or legitimate interest in respect of the Disputed Domain Name. The prima facie inference of the Respondent not having rights or legitimate interests in the Disputed Domain Name is unchallenged. The Panel concludes that that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
The Complainant claims that its trade mark NOVOZYMES has a strong reputation and is widely known throughout the world. Although the Complainant has not provided significant evidence in support, the Respondent has chosen not to deny and/or object to the same. As such, the Panel will draw an adverse inference against the Respondent that the Respondent is aware of and unable to refute the strong reputation and widely known status of the trade mark NOVOZYMES.
Paragraph 4(b)(iv) of the Policy provides that the following is evidence of bad faith registration and use:
“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 website or location.”
The Respondent's website (as shown on the printout provided with the Complaint) is noticeably bare. It essentially contains a few hyperlinks to other websites which do not appear to be related to the Complainant or to each other. The content of the website also does not seem to have any bearing on the Disputed Domain Name.
Previous panels have established that use of a well-known mark as a domain name by a person unconnected to products identified by the well-known mark to attract Internet users to a website for commercial gain is opportunistic bad faith registration and use (e.g. Educational Testing Service v. Mohamed Ahmed Aljarwan, WIPO Case No. D2008-1073; F Hoffmann-La Roche AG v. Anna Valdieri, WIPO Case No. D2007-0956).
In view of the finding that the Respondent does not have a legitimate interest or right to the Disputed Domain Name, and the unchallenged assertion that the trade mark NOVOZYMES is widely known, a reasonable presumption arises that the motive for the Respondent's registration and use of the Disputed Domain Name must be for commercial gain whether by attracting traffic or otherwise. Granted, the presumption may be rebutted by the Respondent in the course of proceedings. However, the Respondent has declined and/or ignored every opportunity provided by the proceedings to do so.
In the circumstances, the unrebutted presumption leads the Panel to a conclusion that the Disputed Domain Name has been made the subject of opportunistic bad faith registration and use by the Respondent.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <novozymes.mobi> be transferred to the Complainant.
Kar Liang Soh
Dated: July 14, 2009