WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
N.V. Nutricia v. Qian Xun
Case No. D2013-1396
1. The Parties
The Complainant is N.V. Nutricia of Zoetermeer, the Netherlands, represented by Dreyfus & associés, France.
The Respondent is Qian Xun of Lhasa, Tibet, China.
2. The Domain Name and Registrar
The disputed domain name <karicare.asia> is registered with Ourdomains Limited (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 7, 2013. On August 7, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 8, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On August 13, 2013, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On August 13, 2013, 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 August 21, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 10, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 11, 2013.
The Center appointed Douglas Clark as the sole panelist in this matter on September 17, 2013. 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 is a company incorporated in the Netherlands and the owner of an international registration for the trade mark KARICARE (the “Trade Mark”). The international registration does not cover China. However, the Complainant also has three national registrations in China for the Chinese translation of Karicare.
Complainant is also the holder of various domain names containing the KARICARE trade mark including:
The Respondent is an individual apparently based in China.
The disputed domain name was registered on September 1, 2012.
5. Parties’ Contentions
The Complainant made the following submissions in the Complaint.
The Complainant is a leading specialist producer of baby food. It has been the owner of the Trade Mark since 1996. The Trade Mark was developed in 1993 and is based upon the Karitane brand of infant milk formula manufactured in New Zealand since 1927. It is a combination of the word “Kari” from the place name and the brand Karitane and the word “Care”. From 1993, the KARITANE trade mark was progressively replaced with the Trade Mark. For a time both the Karitane and Karicare brands were used on the same products to assist in brand transition and educating consumers. The Trade Mark therefore reflects a long history in the infant formula market and is well recognized. It has been used extensively and continuously across the world since 1993, particularly in Asia.
The disputed domain name is identical to the Trade Mark. It incorporates the Trade Mark in its entirety, together with the gTLD “.asia”.
The Respondent has not made any use of the disputed domain name. The Respondent has not been authorized to register and use any domain names incorporating the Trade Mark and is not affiliated with the Complainant in any way. The Respondent is not commonly known by the disputed domain name and has not made a non-commercial or fair use of it.
The disputed domain name has been registered and used in bad faith. The Respondent must have known of the Complainant and the Trade Mark when it registered the disputed domain name. The Complainant has satisfied the relevant factors for establishing bad faith registration and use when domain names have been passively held. Further, the Respondent offered to sell the disputed domain name for USD 1,500 which would be more than the Respondent’s out of pocket expenses for registering the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of Proceedings
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.
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) The Complainant is located in the Netherlands and has no knowledge of Chinese;
(2) If the language of the proceeding were to be Chinese, the proceeding would be unduly delayed and the Complainant would incur translation costs that are likely to be higher than its overall costs for the proceeding; and
(3) English is the primary language of international relations and it is one of the working languages of the Center.
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.
The above submissions are not particularly compelling to this Panel. The Complainant filed in evidence Chinese language brochures for its products. It clearly does business in China in Chinese. Complaints in Chinese have been administered by the Center in the past.
However, in this case there is evidence that the Respondent wrote to the Complainant in English offering to sell the disputed domain name. It is clearly conversant in English and understands the nature of the proceedings. On this basis, the Panel determines the language of proceedings to be English.
B. Identical or Confusingly Similar
The disputed domain name <karicare.asia> is composed of the Complainant’s registered Trade Mark KARICARE and gTLD “.asia”.
Other than the gTLD, the disputed domain name is identical to the Trade Mark.
The first element of the UDRP is made out.
C. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can demonstrate its rights or legitimate interests, are present in this case.
Since the Complainant has made out a prima facie case that the Respondent has not rebutted, the Panel finds that the second element of the UDRP is made out.
D. Registered and Used in Bad Faith
The Panel also finds that the disputed domain name <karicare.asia> has been registered in bad faith and is being used in bad faith.
The Respondent attempted to sell the disputed domain name for USD 1,500 which, without evidence to the contrary given the normal registration fees, will be more than its out of pocket expenses.
This case falls within paragraph 4(b)(i) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“(i) [there are] circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name”.
The third element of the UDRP is made out.
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, <karicare.asia> be transferred to the Complainant.
Date: October 1, 2013