WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Groupe Auchan v. Yuangang Zhang
Case No. D2014-0255
1. The Parties
The Complainant is Groupe Auchan of Croix, France, represented by Dreyfus & associés, France.
The Respondent is Yuangang Zhang of Haerbin, Heilongjiang, China.
2. The Domain Name and Registrar
The disputed domain name <auchanpay.com> is registered with Jiangsu Bangning Science & technology Co. Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2014. On February 19, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 20, 2014, 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 February 21, 2014, the Center transmitted an email to the parties in both English and Chinese regarding the language of proceedings. On February 24, 2014, the Complainant submitted its request that English be the language of proceedings by email to the Center. The Respondent did not submit any comments regarding the language of proceedings within 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 February 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2014. The Center received an email communication from the Respondent on February 28, 2014. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on March 21, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on March 31, 2014. 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 worldwide food retailer. It operates in 13 countries in Europe as well as in China. In China it operates 54 hypermarkets under the Auchan brand as well as 230 hypermarkets under the RT brand. The Complainant operates a number of websites including “www.groupe-auchan.com” and “www.auchan.com.cn”.
The Complainant is the registered proprietor of the trademark AUCHAN around the world in a number of classes and countries, including in China.
The disputed domain name was registered on September 10, 2013. It does not resolve to any website.
5. Parties’ Contentions
The Complainant’s contentions are set out below.
The Complainant submits that the disputed domain name <auchanpay.com> consists of the trademark AUCHAN and the descriptive and generic word “pay”. The disputed domain name is therefore made up of a generic or descriptive word and the Complainant’s trademark and is thereby confusingly similar to the Complainant’s trademark.
The Complainant further submits that the Respondent has no rights or legitimate interests in the disputed domain name. It is not normally known by the name Auchan. It has received no consent or license from the Complainant to use the Complainant’s trademark in the disputed domain name.
The Complainant submits that the disputed domain name was registered and used in bad faith with the intention of attracting Internet users to the website. Despite the fact the website the domain name resolves to is not in operation the only possible use that could be made of the disputed domain name would be to infringe the Complainant’s rights.
The Respondent did not formally reply to the Complainant’s contentions. On February 28, 2014, the Respondent wrote in Chinese in response to the Complaint: “I registered the domain name legally. I don’t understand what you have sent to me. I don’t understand English.”
In response to a cease and desist letter (sent in English) from the Complainant the Respondent stated (in Chinese):
“This domain name was registered by myself, <auchanpay.com> is combination, it does not conflict with your trademark. It is a Chinese [sic] translation of 优产支付 how does this have a conflict with you?”
The Panel notes that the above Chinese characters are pronounced “Youchan Zhifu” in pinyin and mean “excellent capacity to pay”.
6. Discussion and Findings
6.1. Language of Proceedings
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceedings to be English the grounds that the Complainant did not understand Chinese and the costs of translation would be excessive given the nature of the proceedings. The Complainant added that English is the primary language of international relations. The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of proceedings lies with this Panel. As a first point, this Panel does not consider the Complainant’s submission that it does not understand Chinese to be particularly strong. The Complainant operates over 280 shops in China. In the Panel’s view, it must have management staff conversant in Chinese.
Nevertheless, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008 1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of proceedings “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint.”
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays in this matter. The Panel also notes that the Respondent clearly understood the contents of the English language cease and desist letter and responded to it substantively (albeit in a brief reply).
The fact that the disputed domain name includes the word “pay” and could possibly be used for financial malfeasance is a factor that this Panel considers relevant for avoiding further delay.
Accordingly, the Panel determines to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2. Substantive Decision
The Panel finds that this is a clear case of cybersquatting that the UDRP was designed to stop. The Panel agrees fully with the Complainant’s arguments and accordingly does not consider it necessary to write a long decision.
A. Identical or Confusingly Similar
The disputed domain name <auchanpay.com> is made up of the Complainant’s registered trademark AUCHAN and the generic word “pay”. It is confusingly similar to the Complainant’s registered trademark.
Paragraph 1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (the “WIPO Overview 2.0”), sets out the test for determining confusing similarity. Paragraph 1.2 provides (in part):
“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms … typically being regarded as insufficient to prevent threshold Internet user confusion…”
The first element of the Policy is made out.
B. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the dispute domain name. The Respondent has not formally responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. Clearly, none of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case.
As set out above in correspondence with the Complainant the Respondent claimed that “Auchanpay” is a translation of 优产支付. These characters read in Hanyu Pinyin “Youchan Zhifu” and mean “having good capacity to pay”. While the words “youchan” sound a little like “auchan”, no further evidence has been provided to show any use or attempt to use “youchan zhifu” in business. This claimed origin of the disputed domain name is not sufficient to establish any rights or legitimate interests.
The Panel finds that the second element of the Policy is made out.
C. Registered and Used in Bad Faith
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls within paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“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 fact that the disputed domain name is only passively held does not preclude a finding of use in bad faith. As set out in paragraph 3.2 of the WIPO Overview 2.0 states (in part) in relation to passive holding:
“The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.”
In this case, a known mark in the Respondent’s jurisdiction has been used for the name without any cogent explanation. In the circumstances, this Panel cannot imagine any circumstances the disputed domain name could be used legitimately by the Respondent. Therefore, without any explanation by the Respondent as to how it might use the disputed domain name to the Pinyin translation, the Panel finds the Respondent is seeking to trade off of the Complainant’s reputation. The Panel finds that the third element of the Policy 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 <auchanpay.com> be transferred to the Complainant.
Date: April 2, 2014