WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
E. Remy Martin & Co v. xiangwu meng
Case No. D2012-0069
1. The Parties
The Complainant is E. Remy Martin & Co of Cognac, France, represented by Nameshield, France.
The Respondent is xiangwu meng of Qinhuangdao, Hebei, China.
2. The Domain Name and Registrar
The disputed domain name <rentouma.net> (the “Disputed Domain Name”) is registered with HiChina Zhicheng Technology Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2012. On January 17, 2012, the Center transmitted by email to HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the disputed domain name. On January 18, 2012, 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 January 19, 2012, the Center transmitted an email to the Parties in both Chinese and English language regarding the language of proceedings. On January 20, 2012, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceedings by the specified due date.
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 February 2, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 23, 2012.
The Center appointed Kar Liang Soh as the sole panelist in this matter on March 6, 2012. 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’s business of producing and trading in distilled alcoholic beverages dates back to 1724. The Complainant’s main product is a cognac under the trademark REMY MARTIN in English or 人头马 in Chinese. The phonetic spelling of “人头马” is “ren tou ma” and literally means “man head horse” and describes the centaur device used by the Complainant in association with products under the trademark REMY MARTIN.
The trade marks REMY MARTIN and 人头马 have been widely promoted in China and the rest of the world for many years. The Complainant has sold its cognac under the trademarks REMY MARTIN and 人头马 for many decades in China.
The trademarks REMY MARTIN and 人头马 are registered in many jurisdictions including the following:
Madrid International Registration
October 2, 1957
April 28, 1997
The trademark 人头马 is also recognized by the Trademark Office of the State Administration for Industry and Commerce of China as a well-known mark for alcoholic beverages.
According to the WhoIs record, the Disputed Domain Name was registered on May 14, 2007. As of May 25, 2011, the Disputed Domain Name resolved to a website purporting to offer for sale alcoholic beverages in association with the names “France Remy Int. Stock Company Limited” and “法國人頭馬國際股份有限公司” (Chinese traditional script). The HTML page headers also contain the title “人头马”. The Complainant’s solicitors issued a cease and desist letter to the Respondent on October 24, 2011. It is not known from the facts how or whether the Respondent responded to the cease and desist letter. As of February 2, 2012, the Disputed Domain Name did not appear to resolve to any website.
5. Parties’ Contentions
The Complainant contends that:
1) The Disputed Domain Name is confusingly similar to the trademark人头马 because of phonetic equivalence;
2) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not related to the Complainant, does not carry out any activity for the Complainant and does not have any business with the Complainant. The Respondent has not been authorized by the Complainant to use or register the Disputed Domain Name; and
3) The Disputed Domain Name was registered and is being used in bad faith. The trademarks REMY MARTIN and 人头马 are well-known. The Respondent must have been aware of the name at the time of registering the Disputed Domain Name. The Respondent’s use of the Disputed Domain Name intentionally attempted to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement. In addition, the Respondent tried to create a likelihood of confusion by registering a domain name that was confusingly similar to the Complainant’s trademark for the purpose of selling counterfeit products.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Language of Proceeding
The default language of the proceeding is Chinese because the language of the registration agreement is Chinese. However, the Panel is entitled to determine otherwise having regard to the circumstances. The Panel has considered the circumstances and has come to the conclusion that the present circumstances justify adopting English as the language of the proceeding. The Panel was led to this conclusion by the following considerations:
1) The Complaint was submitted in English and the Complainant requested that English be the language of the proceeding.
2) The Respondent neither indicated a preference for the language of the proceeding nor filed a response. The Panel can only fairly surmise that the Respondent does not object what the language of the proceeding may be.
3) Requiring that Chinese be the language of the proceeding at this stage will lead to unnecessary delay and likely additional cost to the Complainant.
4) No discernible benefit to the Parties or proceeding may be derived from insisting that Chinese be the language of the proceeding.
5) This Panel is conversant in both English and Chinese and may properly deal with submissions and evidence in both languages. It is unnecessary for fair and swift disposal of this proceeding to require strict use of Chinese in this proceeding.
A. Identical or Confusingly Similar
Based on the evidence submitted, the Panel agrees that the Complainant has rights in the trademarks REMY MARTIN and 人头马. The Panel does not consider the Disputed Domain Name to be confusingly similar to the trademark REMY MARTIN.
The trademark 人头马 is represented unequivocally as “ren tou ma” in the Pinyin, romanization of Mandarin Chinese (the official language in China), which is a widely implemented and used in word processing systems with Chinese text input capability (e.g., the Chinese text in this decision is written using a Pinyin input method editor). Although the trademark 人头马 is visually different from the Disputed Domain Name, it cannot be denied that the Disputed Domain Name is phonetically identical to “人头马”. As “ren tou ma” is a highly foreseeable means of representing and rendering textual input of the trademark 人头马, the Panel accepts that the Disputed Domain Name is confusingly similar to the trademark 人头马. Therefore, the Panel finds the first limb of paragraph 4(a) of the Policy is established.
B. Rights or Legitimate Interests
The Complainant has confirmed that the Respondent is not related to and has no business with the Complainant. The Complainant has also confirmed that the Respondent has not been authorized to use and register the Disputed Domain Name. The Respondent appears to be an individual and there is nothing in the evidence to suggest that the Respondent is known by the name “rentouma” or “人马头”, or that the Respondent has any rights or legitimate interests in the Disputed Domain Name. Since no response was filed, the prima facie finding of lack of rights or legitimate interests stands and establishes, to the satisfaction of the Panel, the second limb of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
There is insufficient evidence available to the Panel to assist in consideration of the question of whether the goods offered for sale on the website resolved from the Disputed Domain Name were counterfeits to support a finding of bad faith in this manner.
In any event, paragraph 4(b)(iv) of the Policy identifies the following example 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 web site or location.”
The evidence strongly suggests that the Respondent has prior knowledge of the Complainant’s trademarks. There is partial use of the trademark REMY MARTIN in the name “France Remy Int Stock Company Limited”. There is use of a centaur device on the website resolved from the Disputed Domain Name in association with the alcoholic beverages offered for sale. The trademark “人头马” is used in the HTML header title (which is displayed on printouts and browser title bars) and associated name “法國人頭馬國際股份有限公司”.
The purported offering for sale of products at the website resolved from the Disputed Domain Name is clearly intended at commercial gain. The circumstances are highly suggestive of an intention to attract for commercial gain, Internet users to an on-line location by creating a likelihood of confusion with the trademark 人头马 as to the source, sponsorship, affiliation, or endorsement of that location or of products at that location. Taking into account all these considerations, the Panel believes that the Disputed Domain Name was registered and (at least until February 2, 2012) used in bad faith. It is inconceivable why else the Respondent could have selected the Disputed Domain Name. Accordingly, the Panel finds that paragraph 4(b)(iv) of the Policy is made out and establishes the third limb of paragraph 4(a).
The Panel notes that the Disputed Domain Name does not currently appear to resolve to an active website, which the Panel determines does not impact the Panel’s finding on this element of the Policy in light of the above (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <rentouma.net> be transferred to the Complainant.
Kar Liang Soh
Dated: March 27, 2012