WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MILIPOL v. Chang Jian Guo, Bei Jing Jin Rui Shi Ji Gao Ke Ji You Xian Gong Si/YinSi BaoHu Yi KaiQi (Hidden by WhoIs Privacy Protection Service)
Case No. D2015-0314
1. The Parties
The Complainant is MILIPOL of Paris, France, represented by Cabinet Beau de Lomenie, France.
The Respondent is Chang Jian Guo, Bei Jing Jin Rui Shi Ji Gao Ke Ji You Xian Gong Si of Beijing, China; YinSi BaoHu Yi KaiQi (Hidden by WhoIs Privacy Protection Service) of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <milipolchina.com> ("the Domain Name") 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 February 25, 2015. On February 25, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 26, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 26, 2015 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 February 27, 2015.
On February 26, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On February 27, 2015, 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 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(a) and 4(a), the Center formally notified the Respondent of the Complaint in both Chinese and English, and the proceeding commenced on March 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 30, 2015.
The Center appointed Karen Fong as the sole panelist in this matter on April 8, 2015. 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 MILIPOL is a French Economic Interest Group (GIE) which is internationally renowned for organizing trade shows and exhibitions relating to police equipment, civil and military security and related services for internal state security. The past two exhibitions in Paris (2013) and Qatar (2012) attracted 25, 834 and 5,820 trade visitors from 49 and 66 countries respectively. The Complainant advertises in trade publications and attends and participates in other trade exhibitions in this highly specialized field.
The Complainant has traded under the name MILIPOL and MP MILIPOL since at least 1995. "MP" stands for Military Police. The Complainant also owns trade mark registrations for MP MILIPOL dating back to 1995 world wide including France and China. In addition the Complainant and its predecessor in title owns multiple "milipol" domain names including <milipol.cm>, <milipolusa.cm>, <milipolusa.org>, <milipol.org>, <milipol.net>, <milipol.mobi>, <milipol.li>, <milipol.ch>, <milipolkorea.cm>, <milipolkorea.net>, <milipolkorea.org> and <milipolintl.cm>.
The Respondent registered the Domain Name on January 12, 2015. The Domain Name does not appear to have been connected to any active website.
5. Parties' Contentions
The Complainant contends that the Domain Name is confusingly similar to the trade mark MILIPOL and MP MILIPOL, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and being used in bad faith.
B. Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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. According to the information received from the Registrar, the language of the registration agreement for the Domain Name is Chinese.
The Complainant submits in paragraph IV of the Complaint and in an email to the Center on February 27, 2015 that the language of the proceeding should be English. The Complainant contends that the Registrar's website is available in both English and Chinese, the Domain Name is in the English language including the word "China", the Complainant is not able to communicate in Chinese and if the Complainant had to submit documents in Chinese, the proceeding will be unduly delayed and the Complainant would have to incur substantial expenses for translation.
The Panel accepts the Complainant's submissions regarding the language of the proceeding. The Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese especially in circumstances where the Respondent has elected not to file a Response to the proceeding. The Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. The Respondent cannot avail himself of the excuse that he had no knowledge or did not understand that a proceeding has been filed against him. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
C. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has registered rights to the trade mark MP MILIPOL. The Panel is also satisfied that the Complainant has unregistered trade mark rights to MILIPOL on its own by virtue of the use of the name in this highly specialized field of internal state security.
The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case the Domain Name comprises the trade mark MILIPOL and the geographical term "China". For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic domain suffix. Further, the term "China" does not negate the identity or confusing similarity encouraged by the Respondent's use of the Complainant's trade mark in the Domain Name. Even if the Panel had found that the Complainant had not submitted sufficient evidence to support a claim of unregistered rights in the name MILIPOL and Complaint was based only on its registered rights in the trade mark, MP MILIPOL, the Panel considers that the dominant element of the trade mark to be the word MILIPOL which is also the dominant element in the Domain Name.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
D. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in paragraph 2.1 of the Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainant alleges that the Respondent has no relationship or economic link with it nor has the Respondent received any licence to use the MILIPOL trade mark in a domain name or in any other manner. The Respondent has never been known by the Domain Name and has no legitimate interest in the tarde mark. Further the word MILIPOL whilst an abbreviation of the words "military police" does not appear to be a common abbreviation of the same. A search on Google revealed only references to the Complainant. It appears to have no other known meaning in any language except as the trade mark and business of the Complainant. There is no active use of the Domain Name which means that there is no evidence of the Respondent using the Domain Name for a bona fide offering of goods or services. There is also no evidence of demonstrable preparations to use the Domain Name in this manner. Neither is there any evidence of legitimate noncommercial fair use of the Domain Name.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
E. Registered and Used in Bad Faith
To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Domain Name is not connected to an active website. This does not prevent a finding of bad faith. The Consensus View in paragraph 3.2 of the WIPO Overview 2.0 states that the apparent lack of active use of the domain name without any active attempt to sell or to contact the trade mark owner does not prevent a finding of bad faith. The panel has to examine the circumstances of the case to determine whether the respondent is acting in bad faith. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.
The MILPOL trade mark was used and the MP MILIPOL trade mark registered before the Domain Name was registered. The Complainant has a presence on the Internet and is also well-known globally in the specialized world of internal state security. The word "milipol" does not have any ordinary meaning in the English language. The Complainant hosts exhibitions globally and may well decide to host one in China at some stage. The Domain Name may be a desirable one to have should that happen. It would be inconceivable that the Respondent had no knowledge of the trade mark when the Domain Name was registered. Further the Respondent used a privacy or registration service to register the Domain Name. The consensus view of paragraph 3.9 of the WIPO Overview 2.0 is that although the use of a privacy or proxy registration service is not of itself an indication of bad faith, the manner in which such service is used can and in certain circumstances constitute a factor indicating bad faith. The use of the privacy service is such a factor in this case and the Panel concludes that the registration was made in bad faith.
In addition to the circumstances of registration referred to above, the following facts indicate that the Domain Name is being used in bad faith. The Complainant's trade mark has achieved reputation and goodwill amongst a specialized market, the trade mark has no other meaning other than in reference to the Complainant, the Complainant has domain names which have a country suffix, the Respondent failed to file a response and he used a privacy/proxy service to register the Domain Name.
Considering the circumstances, the Panel considers that the Domain Name was also used in bad faith.
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 <milipolchina.com> be transferred to the Complainant.
Date: April 23, 2015