WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Areva v. Zhang Peng
Case No. D2015-0446
1. The Parties
The Complainant is Areva of Courbevoie, France, represented by Dreyfus & associés, France.
The Respondent is Zhang Peng of Xi'an, Shanxi, China.
2. The Domain Name and Registrar
The disputed domain name <areva.top> 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 March 12, 2015. On March 13, 2015, the Complainant filed an amended Complaint to the Center. On March 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 14, 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.
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").
On March 17, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On March 18, 2015, 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.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on March 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 15, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 16, 2015.
The Center appointed Sok Ling MOI as the sole panelist in this matter on April 29, 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 one of the leading global players in the nuclear and renewable energy industry.
The Complainant has a worldwide presence concentrated in the European and American continents, employing more than 45,000 employees worldwide. The Complainant's reported consolidated sales revenues of 2013 were in excess of EUR 9 billion. The Complainant has an industrial presence in China and maintains sales offices and production sites in China in 12 locations, having forged links with the Chinese nuclear industry since the mid-1980s.
The Complainant's trade mark AREVA is registered in several jurisdictions. In China, its AREVA trade mark is protected by virtue of International Trade Mark Registrations No. 839880 and No. 783282 (designating China) registered on July 16, 2004 and November 28, 2001 respectively.
The Complainant owns the following domain names:
<areva.com> registered April 13, 1998;
<areva.net> registered September 17, 2002;
<areva.info> registered October 26, 2005;
<areva.org> registered November 25, 2003.
The Respondent registered the disputed domain name <areva.top> on November 24, 2014. As of the date of this decision, the disputed domain name remains inactive and does not resolve to any active website.
5. Parties' Contentions
The name AREVA is the corporate name and trade mark of the Complainant.
The Complainant has registered its AREVA trade marks across the world, including in China, covering goods and services in classes 6, 7, 9, 17, 35, 37, 38, 39, 40, 41, 42 and 45. The Complainant asserts that its AREVA trade marks have been constantly used in connection with a wide variety of products and services relating to production, distribution and transmission of energy around the world, including in Asia and more particularly, in China.
The Complainant asserts that its AREVA trade marks enjoy a worldwide reputation.
A1. The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights:
The disputed domain name is confusingly similar to the Complainant's trade mark AREVA. Indeed, the disputed domain name reproduces the Complainant's trade mark in its entirety and this ought to be sufficient to establish that a domain name is identical or confusingly similar to the Complainant's trade mark. The addition of the generic Top-Level Domain ("gTLD") ".top" does not dilute the overall impression of the dominant portion of the disputed domain name which leads to confusion.
The disputed domain name <areva.top> is virtually identical to the Complainant's domain name <areva.com>, thus resulting in diversion of Internet traffic from the Complainant's website to the Respondent's website, and also in misleading Internet users into believing that the disputed domain name belongs to the Complainant or is somehow associated with the Complainant.
A2. The Respondent has no rights or legitimate interests in respect of the disputed domain name:
The Respondent is not affiliated with the Complainant in any way, nor has the Respondent been authorised by the Complainant to use and register its AREVA trade mark, or seek registration of any domain name incorporating said trade mark.
The registration of the AREVA trade marks and presence of the Complainant in Asia and China long preceded the registration of the disputed domain name. As the Complainant and its AREVA trade marks are well known worldwide, the Respondent cannot reasonably pretend it was contemplating a legitimate activity of offering goods or services at the disputed domain name. It was likely the Respondent intended to benefit from the reputation of the Complainant's AREVA trade marks.
The disputed domain name directs users to an inactive page. Hence, the Respondent did not demonstrate use of, or preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
Further, the Respondent did not respond to the Complainant's cease-and-desist letter and has failed to justify legitimate interests in the disputed domain name. It appears the Respondent had provided incorrect contact details and this made it difficult for the Complainant to make postal contact with the Respondent.
The Respondent was also involved in several prior UDRP cases where he registered domain names incorporating third party trade marks. Previous UDRP panels have found the Respondent lacked legitimate interest in these domain names.
A3. The disputed domain name was registered and is being used in bad faith:
The Complainant is well known around the world and it is not plausible that the Respondent is unaware of the Complainant's activities and trade mark AREVA, especially given this age of the Internet where reputation transcends borders. Previous UDRP cases have suggested that a finding of bad faith can also be made where the respondent "knew or should have known" of the complainant's trade mark rights.
The Respondent has registered several other domain names reproducing famous trade marks, e.g. <airfranceklm-finance.top>, <bnp-parisbas.top>, <heinenken.top>, <telstra.top>, <vivendi.top> (see Annex 32).
The Respondent has also been involved in several dispute resolution proceedings where the panels have ordered a transfer or suspension of the domain names at issue, e.g. <doubletreeresort.com>, <celularsouth.com> (see Annexes 20, 21).
From these, it can be concluded that the Respondent is engaged in a pattern of cybersquatting.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
Pursuant to paragraph 11 of the Rules, 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.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
(a) The Complainant is a company located in France and has no familiarity with the Chinese language.
(b) To proceed in Chinese, the Complainant would have to retain specialised translation services at a disproportionately high cost which would impose a burden on the Complainant.
(c) The Respondent has chosen to register a domain name which consists of Latin characters paired with the gTLD ".top" which is also in Latin. This strongly suggests that the Respondent has familiarity with English.
(d) The Respondent owns numerous other domain names all consisting of Latin characters, e.g. <austrian.top>, <bankofireland.top>. This is yet another indication that the Respondent has familiarity with English.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances.
The Panel has taken into consideration the fact that the Complainant is a company from France, and requesting the Complaint to be re-filed in Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and would cause delay to the proceeding.
On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by the Complainant, (a) the disputed domain name <areva.top> is registered in Latin characters, rather than Chinese script; (b) the Respondent owns numerous other domain names all consisting of Latin characters; (c) the Center has notified the Respondent of the proceeding in both Chinese and English, and the Respondent has indicated no objection to the Complainant's request that English be the language of the proceeding; and (d) the Center informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint as filed in English, (ii) that English shall be the language of the proceeding and the decision will be rendered in English.
6.2 Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows:
A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in AREVA by virtue of its use and registration of the same as a corporate name and trade mark. Given that the disputed domain name incorporates the Complainant's trade mark AREVA in its entirety with no other additional prefix or suffix, the Panel has no difficulty in finding that the disputed domain name is identical with the Complainant's trade mark.
Accordingly, the Complainant has satisfied the requirements of the first element under Paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Under Paragraph 4(a)(ii), the Complainant bears the burden of establishing that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under Paragraph 4(a)(ii), the burden shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under Paragraph 4(c):
(i) before any notice to it of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the disputed 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 disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(see Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao internet foshan co, ltd, WIPO Case No. D2013-0974)
The Panel is satisfied that the Complainant has made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. In the Panel's opinion, the evidence furnished by the Complainant, discussed in section 5 above, is sufficiently evocative of cybersquatting to require the Respondent to come forward with evidence to rebut the presumption. The Respondent has however failed to respond.
Accordingly, the Complainant has satisfied the requirements of the second element under Paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registrations to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's websites 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 the Respondent's websites or location or of a product.
The Panel notes that the disputed domain name does not resolve to any active website, and there is no evidence that the Respondent has attempted to sell the disputed domain name or to contact the Complainant. Nevertheless, the consensus view of previous UDRP Panels is that passive holding in itself does not preclude a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 3.2)
The Complainant has a worldwide reputation and has had an industrial presence in China for at least the past 20 years. A cursory Internet search would have disclosed the AREVA trade mark and its extensive use by the Complainant. Thus a presumption arises that the Respondent was aware of the Complainant's AREVA trade marks and related domain names when he registered the disputed domain name.
The Respondent has failed to respond to the Complaint and thus provided no evidence of bona fide use of the disputed domain name. Furthermore, efforts to contact the Respondent at the physical address provided to the Registrar failed which suggests that the Respondent had provided false contact details.
The Complainant has offered prima facie proof that the Respondent is engaged in a pattern of cybersquatting.
The Panel finds that the circumstances referred to in paragraph 4(b)(ii) of the Policy are applicable to the present case and taking into account all other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under Paragraph 4(a) of the Policy.
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 <areva.top> be transferred to the Complainant.
Sok Ling MOI
Date: May 20, 2015