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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Lindberg A/S v. xupeng

Case No. D2014-1813

1. The Parties

The Complainant is Lindberg A/S of Aabyhoej, Denmark, represented by Lett Law Firm, Denmark.

The Respondent is xupeng of Fuzhou, Fujian, China.

2. The Domain Name and Registrar

The disputed domain name <lindberg-china.com> is registered with Xiamen ChinaSource Internet Service Co., Ltd. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 16, 2014. On October 16, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 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 October 21, 2014, the Center transmitted an email communication to the parties in both Chinese and English regarding the language of the proceeding. On October 23, 2014, the Complainant requested 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 in both Chinese and English, and the proceeding commenced on October 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 16, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 17, 2014.

The Center appointed Douglas Clark as the sole panelist in this matter on November 19, 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 Danish eyewear designer and manufacturer who designs and produces eyewear, sunglasses and spectacle frames for both adults and children and is one of the world's leading manufacturers of lightweight titanium frames. The Complainant's products are sold under the trademark LINDBERG. The trademark LINDBERG has been registered in Class 9 in various countries around the world, including China. The Complainant also operates the website "www.lindberg.com".

The Respondent is a Chinese individual. The disputed domain name was registered on September 15, 2014. The disputed domain name does not resolve to an active page. However, two email addresses, […]@lindberg-china.com and […]@lindberg-china.com are used to offer apparently counterfeit eyewear bearing the LINDBERG trademark.

5. Parties' Contentions

A. Complainant

The Complainant's contentions are set out below.

The Complainant submits that the disputed domain name <lindberg-china.com> consists of the trademark LINDBERG and the geographical description "China". The disputed domain name is made up of the Complainant's trademark and a geographic term. It 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 commonly known by the name "Lindberg". It has not received any consent or license from the Complainant to use the Complainant's trademark.

The Complainant submits that the disputed domain name was registered and is being used in bad faith with the intention of confusing Internet users as to some link between the disputed domain name and the Complainant.

B. Respondent

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

6. Discussion and Findings

Language of the Proceeding

The language of the Registration Agreement is 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 proceeding to be English on the grounds that emails sent from email addresses under the disputed domain name were sent to potential customers around the world in English.

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 the proceeding lies with this Panel.

The emails in English were not long, but do show an intention to do business in English. As set out below, this Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter.

These factors lead the Panel to determine 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.

Substantive decision

The Panel finds that this is a clear case of domain name hijacking 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 <lindberg-china.com> is made up of the Complainant's registered trademark LINDBERG, the geographical description "China" and the generic Top-Level Domain (gTLD) ".com". 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 responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. 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.

The Panel finds that the second element of the Policy is made out.

C. Registered and Used in Bad Faith

The Panel has no hesitation in finding that the disputed domain name was registered and is being used in bad faith.

This case falls within sub-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 sale of possibly counterfeit LINDBERG products by use of email addresses incorporating the Complainant's trademark clearly falls under this sub-paragraph.

The Panel finds that the third element of the Policy is made out.

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 <lindberg-china.com> be transferred to the Complainant.

Douglas Clark
Sole Panelist
Date: November 20, 2014

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