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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AVK Holding A/S v. Li Se Hui, Hong Feng Fa Men You Xian Gong Si / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service)

Case No. D2016-1033

1. The Parties

The Complainant is AVK Holding A/S of Galten, Denmark, represented internally.

The Respondent is Li Se Hui, Hong Feng Fa Men You Xian Gong Si of Shanghai, China / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China.

2. The Domain Name and Registrar

The disputed domain name <avkvalve.com> is registered with HiChina Zhicheng Technology Ltd (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 24, 2016. On May 24, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 26, 2016, 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 May 27, 2016 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 May 30, 2016.

On May 27, 2016, the Center sent an email communication in both Chinese and English regarding the language of the proceeding. On May 30, 2016, the Complainant submitted a 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 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 both Chinese and English of the Complaint, and the proceeding commenced on June 2, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 22, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 23, 2016.

The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 30, 2016. 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

A. Complainant

The Complainant is a company incorporated in Denmark and the holding company of the AVK Group, manufacturers of valves, hydrants and accessories, marketed and sold worldwide (including in China) under the trade marks AVK and AVK VALVES (the "Trade Mark(s)"). The Complainant is the owner of numerous registrations worldwide for the Trade Marks, including registration number 4414166 in China dating from June 14, 2010 for the Trade Mark AVK VALVES; and registration number 4414169 in China dating from June 14, 2010 for the Trade Mark AVK.

B. Respondent

The Respondent is apparently a company incorporated in China.

C. The Disputed Domain Name

The disputed domain name was registered on November 2, 2015.

D. The Website at the Disputed Domain Name

The disputed domain name is resolved to a Website with both Chinese and English language content and which contains a logo comprising the AVK Trade Mark; which has a similar layout and blue colour scheme to the Complainant's official "www.avkvalves.com" website; and which promotes and offers for sale valves and actuators in direct competition with those manufactured and sold by the Complainant (the "Website").

5. Parties' Contentions

A. Complainant

The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

6.1 Language of the Proceeding

The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.

Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.

The Complainant has requested that English be the language of the proceeding for the following reasons:

(1) The Respondent is a professional trading company operating in an internationalised business segment and offering products on the Website to both domestic and foreign markets, using a ".com" domain name;

(2) The Complainant is part of an international group whose preferred language is English;

(3) Requiring the Complainant to translate the Complaint and exhibits into Chinese would disadvantage the Complainant and would involve further cost and delay.

The Respondent did not file any submissions regarding the language of the proceeding and did not file any response to the Complaint.

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 proposed language, time and costs.

The Website contains both Chinese and English language pages. The Panel finds that such Website content provides sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.

In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should the language of the proceeding be English.

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 Elements of the Policy

The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration.

The disputed domain name comprises the AVK Trade Mark in its entirety (together with the non-distinctive word "valve" which is descriptive of the goods marketed and sold by both parties in this proceeding); and is almost identical to the AVK VALVES Trade Mark, the only difference being the missing "s".

The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:

(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.

The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which, without the Complainant's authorisation, features prominently the AVK Trade Mark (as part of a logo); contains similar layout and corporate livery to the Complainant's official website; and promotes and offers for sale valves and actuators in direct competition with those of the Complainant.

There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.

There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.

The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

In light of the evidence of the Respondent's use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.

For all the foregoing reasons, the Panel concludes that the disputed domain name has been 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 <avkvalve.com> be transferred to the Complainant.

Sebastian M.W. Hughes
Sole Panelist
Dated: July 14, 2016

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