WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VF International SAGL v. wu wang
Case No. D2015-0362
1. The Parties
The Complainant is VF International SAGL of Stabio, Switzerland, represented by Studio Professionale Associato a Baker & McKenzie, Italy.
The Respondent is wu wang of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <napapijri-europe.net> is registered with Chengdu Fly-Digital Technology Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 3, 2015. On March 3, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 5, 2015, 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 March 5, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, 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 March 11, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 1, 2015.
The Center appointed Douglas Clark as the sole panelist in this matter on April 13, 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 is a sport and mountain clothing company with business around the world. The Complainant is the registered proprietor of the trademark NAPAPIJRI in various countries in numerous classes.
The disputed domain name <napapijri-europe.net> was registered on October 22, 2014. The website to which the disputed domain name resolved to was at the time the Complaint was filed used to sell Napapijri products and featured the Complainant's NAPAPIJRI trademark.
5. Parties' Contentions
Identical or confusingly similar
The Complainant argues that the disputed domain name <napapijri-europe.net> is made entirely up of the registered trademark NAPAPIJRI and the geographical description "Europe" to which generic Top-Level Domain ("gTLD") ".net" has been added. It is therefore confusingly similar to the Complainant's registered trademark NAPAPIJRI.
No rights or legitimate interests
The Complainant submits that the Respondent has not been known by the disputed domain name and the Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for NAPAPIJRI.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant's rights in the NAPAPIJRI trademark and registered the disputed domain name to attract business to its website. As such, its registration and use is in bad faith.
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 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 proceeding to be English on grounds that included that the Complainant was not familiar with the Chinese language and that the website under the disputed domain name was written in a number of languages including English. On the website, the Respondent claims to be a multinational company.
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 the proceeding lies with this Panel. As a first point, this Panel does not consider the Complainant's submission that the Complainant is not familiar with the Chinese language to be of much weight. The fact that the website under the disputed domain name is written in a number of languages, including English, is of greater weight. The Respondent is seeking to attract business in English.
Further, the Respondent has not responded to the Center's preliminary determination.
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 the proceeding "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 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.
6.2. Substantive Issues
This is a very simple case of clear cybersquatting for the purposes of commercial gain which the UDRP was designed to stop.
A. Identical or Confusingly Similar
The disputed domain name <napapijri-europe.net> is made up of the registered trademark NAPAPIJRI, the geographical term "Europe" and the gTLD ".net". The disputed domain name is confusingly similar to the registered trademark NAPAPIJRI. The first part of the paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") provides:
"While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore 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 fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP."
The Complainant has made out a prima facie case that the Respondent has no 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 second part of the paragraph 4(a) of the Policy is therefore satisfied.
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 <napapijri-europe.net> was registered in bad faith and is being used in bad faith.
This case falls with 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 website under the disputed domain name is clearly being used to sell products. Nothing on the website at the disputed domain name informs the Internet users that it is not sponsored or endorsed by the Complainant.
The third part of the paragraph 4(a) of the Policy is therefore satisfied.
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 <napapijri-europe.net> be transferred to the Complainant.
Date: April 26, 2015