WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AREVA v. Sujuan Jiang
Case No. D2010-2119
1. The Parties
The Complainant is Areva of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Sujuan Jiang of Fushun, Liaoning, the People’s Republic of China.
2. The Domain Name and Registrar
The disputed domain name <areva.mobi> is registered with HiChina Zhicheng Technology Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2010. On December 9, 2010, the Center transmitted by email to HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the disputed domain name. On December 10, 2010, 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 December 13, 2010, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On December 14, 2010, 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, and the proceedings commenced on December 20, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 9, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 10, 2011.
The Center appointed Douglas Clark as the sole panelist in this matter on January 17, 2011. 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 Panel will deal with the issue of the language of proceedings in its substantive decision.
4. Factual Background
Areva is a world leader in the energy industry. Areva is ranked first in the global nuclear power industry. It covers the entire nuclear cycle, from uranium mining to used fuel recycling, including reactor design and related services.
In 2009, Areva’s revenue was 8.5 billion euros and it obtained a consolidated net income of 552 million euros. Today, the company employs 48,000 people around the world. Areva has industrial presence on every continent and is aiming to strengthen its international presence by developing a balance between Europe, North and South America and Asia. Areva is present in China where it has won in April 2009 two contracts valued at more than 150 million euros to supply 18 reactor coolant pumps to the Chinese utility CNPEC.
Areva has been present in China since the mid 1980s. Today it has 11 offices and industrial / engineering & project facilities in China. Areva has participated to 6 of the 11 nuclear power plants currently in operation in China. 20 of 24 reactors under construction in China use Areva technology with direct participation in 4 of these 20 reactors. Areva has also built strategic partnerships in China. In particular, in 2009, Areva signed an agreement with CGNPC for the creation of a joint venture in charge of the engineering and procurement of second and third generation power plants.
The Complainant became aware of the registration and use of the disputed domain name <areva.mobi> by the Respondent. This domain name has directed users to a site in Chinese, giving a presentation of the Areva group and offering the disputed domain name for transfer for RMB2.8 million providing next to that amount a contact name and number.
On June 22, 2010, the Complainant sent a cease-and-desist letter to the Respondent by registered letter and via email on the basis of its trademark rights; the cease-and-desist letter asked the Respondent to amicably transfer the disputed domain name. Between June 30 and July 13, the Complainant sent three reminders of the cease-and-desist letter to the Respondent. The Respondent has not so far not answered any of the emails. The registered mail version of the cease-and-desist letter was returned to sender due to an incomplete address.
5. Parties’ Contentions
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain name <areva.mobi> be transferred to the Complainant.
The Complainant submits that the grounds for these proceeding are listed in paragraph 4(a) of the Policy.
Identical or Confusingly Similar
The Complainant and its trademark AREVA enjoy a worldwide reputation. Areva is the owner of numerous AREVA trademarks across the world. The Complainant is in particular the owner of the following International Trademark Registrations designating China:
AREVA n° 783282 registered on November 28, 2001 covering goods and services in classes 9, 11, 19, 35, 36, 37, 38, 39, 40 and 42.
AREVA n° 839880 registered on July 16, 2004 covering goods and services in classes 7, 9, 17, 35, 37, 38, 39 and 40.
The name “areva” is also the corporate and trade name of the Complainant.
The disputed domain name <areva.mobi> is identical, or at least confusingly similar to the Complainant’s trademark AREVA. Indeed, it reproduces the Complainant’s trademark in its entirety which is sufficient to establish that the disputed domain name is identical.
The disputed domain name differs only from Complainant’s trademark by the addition of the extension “.mobi”.
The extension “.mobi”, like the extension “.com”, is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademarks and the disputed domain name. The Complainant cites numerous cases including Accor v. Noldc Inc., WIPO Case No. D2005-0016.
Areva is a distinctive term without any meaning, in any language. This circumstance increases the likelihood of confusion between the disputed domain name and the Complainant’s trademark since “areva” cannot be understood as a common name having a specific meaning.
The Complainant has used the trademark AREVA in connection with a wide variety of products and services relating to production, distribution and transmission of energy around the world, including in Asia. Consequently, the public has learned to perceive the goods and services offered under this mark as being those of the Complainant.
As a result, the public would reasonably assume that a domain name such as this, composed from the Complainant’s trademark, is related to the Complainant or owned by the Complainant and that the latter is also involved in mobile devices, services and applications, which would not be surprising since large corporations are often involved in various activities.
For all the above mentioned reasons, the Complainant argues the disputed domain name is identical or at least confusingly similar to the trademark AREVA in which the Complainant has rights, and therefore the condition of paragraph 4(a)(i) is fulfilled.
Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Respondent did not demonstrate, before receiving any notice of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services.
Counsel for the Complainant sent a cease and desist letter to the Respondent informing it that the disputed domain name infringed Complainant’s registered trademarks; the letter also demanded that the Respondent permanently cease all use of the disputed domain name. The Respondent has not contacted the Complainant. Yet, the Complainant assers that the Respondent should be aware of the letter since HiChina Zhicheng Technology Limited says in an email addressed to the Complainant on July 8, 2010 after the reception of a reminder concerning the cease and desist letter:
“We received your email on the case that website at http://areva.mobi was suspected to conduct infringing act. And we have informed the client to handle the matter immediately”.
The Complainant therefore assumes that the Respondent has not been willing to reply to the cease and desist letter. The Complainant argues that panels have repeatedly stated that when the Respondent chooses not to respond to the Complainant, it can be assumed that the Respondent has no rights or legitimate interests in the disputed domain names citing Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim, WIPO Case No. D2003-0269,and Groupe Auchan v. Registrant : Broadcast Technology WIPO Case No. D2009-0313.
The Complainant further argues that the Respondent is not commonly known by the name “Areva”, is not in any way affiliated with Complainant, nor authorized or licensed to use the AREVA trademark, or to seek registration of any domain name incorporating said mark.
Further, the Complainant argues that the Respondent is very likely to have registered the disputed domain name and the website for financial gain only. Indeed, the disputed domain name is offered for sale at RMB2.8 million by the Respondent which corresponds approximately to USD 420,000.
Registered and Used in Bad Faith
The Complainant argues the disputed domain name has been registered and used in bad faith.
The Complainant argues it is implausible that the Respondent was unaware of the Complainant when it registered the disputed domain name.
Firstly, the Complainant is well-known throughout the world, including in China. Numerous countries, including China, have been relying on the Complainant’s skills and expertise to develop their nuclear technology for the past 20 years. The Complainant has 11 offices and industrial / engineering & project facilities in China. Areva has participated to 6 of the 11 nuclear power plants currently in operation in China. 20 of 24 reactors under construction in China use Areva technology with direct participation in 4 of these 20 reactors. Moreover, the Areva Foundation, which carries out more than 20 projects per year in nearly 15 countries, has been supporting the Institut Pasteur in Shanghai since 2005 on the issue of climate change and its impact on viral diseases.
Secondly, AREVA is a well-known trademark throughout the world; several panels have previously mentioned its worldwide reputation, making it unlikely that the Respondent was not aware of Complainant’s rights in the trademark (AREVA v. St. James Robyn Limoges, WIPO Case No. D2010-1017 and Areva v. N/A, WIPO Case No. D2008-0537,). Another panel further stated that the trademark became well-known with substantial goodwill associated thereto in Europe and the United States of America, but also in Asia, where the Respondent is located (AREVA v. MIC / Hussain, Syed, WIPO Case No. D2010-1098,).
Additionally, a quick trademark or online search would have shown Complainant’s registered AREVA trademarks and the existence of the company. Such searches could have been expected especially in light of the fact that the Respondent is not inexperienced in holding domain names since he is associated with 32 other domain names.
The Complainant argues that the Respondent is making use of the disputed domain name in bad faith in particular because the Respondent offers the disputed domain name for sale at RMB2.8 million which corresponds approximately to USD 420,000.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The disputed domain name Registration Agreement being in Chinese, pursuant to Rules, paragraph 11, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, i.e. the default language of the proceeding shall be Chinese. However, the Complainant submitted a request for English to be the language of the proceeding along with the Complaint.
Below is a summary of the Complainant’s arguments on the issue of the language of the proceeding:
a. The Complainant drafted the Complaint in English the international language of commerce and a working language of the Center.
b. The disputed domain name includes the name Areva indicating a familiarity with Roman letters.
c. The Complainant has not been able to contact the Respondent to agree on the language of the proceeding.
d. The Complainant is based in France and has no knowledge of Chinese.
e. It would be cumbersome and to the Complainant’s disadvantage to be forced to translate the entire Complaint into Chinese.
The Panel considers grounds (c) and (e) to be of some merit and grouonds (a) and (b) are not compelling. (D) is in fact contrary to the Complainant’s evidence as to its activities in China.
Pursuant to paragraph 11 of the Rules, the Panel is granted the power to determine the language of the proceeding, having regard to the circumstances of the case. This Panel stated in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191 that
“[o]ne important consideration of this issue is the fairness to both parties in their abilities to prepare the necessary documents and protect their own interests”.
The Center has provided both parties with an opportunity to comment on the language of the proceeding by sending both parties a consolidated Language of Proceeding notification. The Complainant has provided submissions in its Complaint regarding the proper language of the proceeding, while the Respondent did not raise any objection or reply thereto. This Panel concluded in the Zappos.com, Inc. cited above:
“A Respondent’s failure to respond to these notices should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint [. . .] a clear default by a Respondent who has been informed in their own language of the proceedings, and of the preliminary acceptance of the Complaint in a particular language, would certainly be a strong factor in support of a Panel subsequently determining that there should be consistency between the language of the Complaint as originally accepted and the language of proceedings as ultimately determined by the Panel [. . .] a default by the Respondent after having been notified of the proceedings and being requested to comment or object to the language request should be a strong factor for the Panel to proceed in line with the Center’s decision on language.”
Considering that both parties have been given fair opportunities to present their cases and the Respondent has been given an opportunity to object to the proceedings being conducted in English but has not responded, the Panel finds that in the circumstances of this case, paragraph 11 of the Rules is best served by allowing the proceedings to be conducted in accordance with the Center’s standard practice. If the Respondent had filed a response in Chinese, this would have been accepted. As the only pleading before the Panel is in English and given the Respondent’s default, the Panel will issue its decision in English.
The Panel is satisfied that it is reasonable here for the Complainant be allowed to submit its documentation in English while the Respondent may still file in Chinese. This generally will be the fairest method for resolving such cases.
6.2. Substantive Elements of the Policy
Under paragraph 4(a) of the Policy, the Complainant must prove the following:
(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 respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
This case is in the Panel’s view a clear case of cybersquatting and the Panel has no difficulty in deciding in favour of the Complainant.
A. Identical or Confusingly Similar
The Complainant has exclusive rights in the mark AREVA and has provided evidence of this fact.
The disputed domain name consists of the Complainant’s trademark, plus the top level “.mobi”. It is
well-established that the specific top level of a domain name such as “.mobi” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Complainant has the burden of demonstrating the Respondent’s lack of rights or legitimate interests.
In this case, the Complainant states that it has not authorized the Respondent to use its AREVA mark, whether in a domain name or otherwise, and there is no evidence to the contrary. Nor is there any evidence of the disputed domain name having been used for a fair or legitimate noncommercial purpose, without intent for commercial gain.
Consequently, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) provides examples of circumstances which shall be evidence of registration and use in bad faith, which include “ by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] 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 [the Respondent’s] web site or location or of a product or service on [the Respondent’s] web site or location”.
Given the widespread use and goodwill the Complainant’s AREVA mark it is inconceivable to the Panel that the Respondent was not aware of the Complainant and the Complainant’s activities when registering the disputed domain name.
The offer to sell the domain name for RMB2.8 million is clear evidence of use in bad faith.
The Panel therefore finds that, in the circumstances of this case, the disputed domain name was registered and is being in bad faith.
For all 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, <areva.mobi>, be transferred to the Complainant.
Dated: January 21, 2011