WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MILIPOL v. Bei Jing Jin Rui Shi Ji Gao Ke Ji You Xian Gong Si
Case No. D2015-0511
1. The Parties
The Complainant is MILIPOL of Paris, France, represented by Cabinet Beau de Lomenie, France.
The Respondent is Bei Jing Jin Rui Shi Ji Gao Ke Ji You Xian Gong Si of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <milipolcn.com> 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 March 24, 2015. On March 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 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 25, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On March 26, 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 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 April 8, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 28, 2015. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on April 29, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 6, 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 French Economic Interest Group (GIE), which is internationally renowned for organising trade shows and exhibitions related to police equipment, civil and military security, and related services. The Complainant has been using its trade name MILIPOL in this connection since 1995 (the "Trade Name").
The Complainant is the owner of numerous registrations worldwide for the trade mark MP MILIPOL (the "Trade Mark"), the earliest registration dating from 1995, including an International Registration No. 641805 registered on August 10, 1995, covering China, where the Respondent is based.
The Complainant is also the owner of the domain name <milipol.com>, as well as numerous domain names comprising the Trade Name together with the name of or abbreviation for a country as a suffix, including <milipolqatar.com>, <milipol.usa>, <milipolusa.com>, <milipolusa.org>, <milipol.org>, <milipol.net>, <milipol.mobi>, <milipol.li>, <milipol.ch>, <milipolkorea.com>, <milipolkorea.net>, <milipolkorea.org> and <milipolintl.com>.
The Respondent is apparently an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on January 22, 2015.
D. The Website at the Disputed Domain Name
The disputed domain name has not been used.
5. Parties' Contentions
The Complainant made the following submissions in the Complaint.
The disputed domain name is confusingly similar or identical to the Trade Mark and the Trade Name. The letters "MP" comprised in the Trade Mark stand for "military police" and are descriptive of the services offered by the Complainant under the Trade Mark and the Trade Name. The omission of these letters from the disputed domain name and the addition of "cn", the geographical indicator for China, does not serve to avoid a finding of confusing similarity.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated with or authorised by the Complainant. The Respondent is not using the disputed domain name in respect of a bona fide offering of goods or services. The Respondent is not commonly known by the disputed domain name.
The disputed domain name has been registered and used in bad faith. The Trade Mark is a well-known mark and, given the notoriety of the Complainant and of the Trade Mark, the Respondent must have known of the Complainant and of the Trade Mark and the Trade Name when it registered the disputed domain name. In all the circumstances, the passive use of the disputed domain name amounts to use in bad faith.
The Respondent did not reply to the Complainant's contentions. The Center received an email from an address associated with the Respondent on April 8, 2015, but this communication did not substantively respond to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that English be the language of the proceeding, for the following reasons:
(1) The Registrar's website is available in both English and Chinese;
(2) The geographical indicator "cn" in the disputed domain name refers to the English word "China";
(3) The Respondent is conversant or proficient in the English language;
(4) All exhibits of the Complaint are in English;
(5) The Complainant is not able to communicate in Chinese;
(6) If the Complainant were to be required to submit all documents in Chinese, this would cause undue delay and expense; and
(7) English has been accepted as the language of the proceeding in a previous UDRP proceeding involving the same parties.
The Respondent did not make any submissions with respect to the language of the proceeding and did not file a Response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judiciously in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties' ability to understand and use the proposed language, time and costs.
The Complainant has adduced evidence of pre-Complaint English language email communication between the Respondent and the Complainant's representatives. The Panel therefore finds, in all the circumstances, it is likely the Respondent is conversant in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
Having considered all the matters above, the Panel therefore determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration, and in the Trade Name acquired through use, which predate the date of registration of the disputed domain name by at least 20 years.
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trade mark for purposes of the Policy "when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name". Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662.
The Panel finds that the dominant feature of the Trade Mark is the Trade Name.
The Panel finds the addition of the generic and descriptive letters "cn" does not serve to distinguish the disputed domain name from the Trade Mark or the Trade Name in any significant way. Likewise, the fact that the disputed domain name omits the "MP" portion of the Trade Mark does not sufficiently distinguish, as the disputed domain name does include the Trade Mark's dominant feature.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark and the Trade Name, and holds that the Complainant has fulfilled the first condition of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent 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 (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent 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.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark or the Trade Name. The Complainant has prior rights in the Trade Mark and the Trade Name which precede the Respondent's registration of the disputed domain name by at least 20 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name is used in connection with a bona fide offering of goods or services. The Respondent has adduced no evidence to show that the disputed domain name has been actively used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complainant has fulfilled the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The word "milipol" does not have any ordinary meaning in the English language. The Trade Mark and the Trade Name have no other meaning other than as a reference to the Complainant and its services. The Complainant's reputation and goodwill in the Trade Mark and Trade Name relate to a specialised market. Furthermore, the Complainant has registered and used numerous domain names comprising the Trade Name together with a country name or country name abbreviation suffix.
In all the circumstances, and in particular given the notoriety of the Trade Mark and the Trade Name, the Panel finds it is inconceivable that the Respondent had no knowledge of the Trade Mark and the Trade Name when the disputed domain name was registered. The Panel therefore finds that the disputed domain name was registered in bad faith.
The Panel finds that, in all the circumstances, the Respondent's passive use of the disputed domain name, together with the factors outlined above, are sufficient to amount to bad faith use for the purposes of the third limb under paragraph 4(a) of the Policy.
For the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly, the Complainant has fulfilled the third condition of 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 <milipolcn.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: May 20, 2015