WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Volkswagen AG v. 张雅琴
Case No. D2015-0743
1. The Parties
The Complainant is Volkswagen AG of Wolfsburg, Germany, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
The Respondent is 张雅琴 of Hangzhou, Zhejiang, China.
2. The Domain Name and Registrar
The disputed domain name <volkswagen.网址> is registered with Internet Domain Name System Beijing Engineering Research Center LLC (ZDNS) (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2015. On April 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 27, 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 April 29, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On April 30, 2015, the Complainant submitted 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.
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, and the proceedings commenced on May 7, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2015.
The Center appointed Douglas Clark as the sole panelist in this matter on June 22, 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 German car maker which manufacturers and sells cars worldwide. The Complainant is the registered proprietor of the trademark VOLKSWAGEN in various countries in numerous classes, e.g., International Registration No. 702679, registered on July 2, 1998, designating inter alia China.
The disputed domain name <volkswagen.网址> was registered on December 1, 2014.
5. Parties’ Contentions
Identical or confusingly similar
The Complainant argues that the disputed domain name <volkswagen.网址> is made entirely up of the registered trademark VOLKSWAGEN to which the generic Top-Level Domain (“gTLD”) “.网址” has been added. It is therefore identical or confusingly similar to the Complainant’s registered trademark VOLKSWAGEN.
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 VOLKSWAGEN.
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 VOLKSWAGEN trademark and registered the domain name to attract business to its website. As such, the Complainant alleged registration and use of the disputed domain name was 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’s counsel did not speak Chinese and that translating the Complaint would incur extra costs.
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.
The Respondent did not respond 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
A. Identical or Confusingly Similar
The disputed domain name <volkswagen.网址> is made up of the registered trademark VOLKSWAGEN and the gTLD “.网址”. The disputed domain name is identical to the registered trademark VOLKSWAGEN. 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 similar reasons as those above, the Panel has no hesitation in finding that the disputed domain name <volkswagen.网址> was registered in bad faith and is being used in bad faith.
While the disputed domain name has not yet been used, this does not prevent a finding of bad faith. Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain in bad faith. See paragraph 3.2 of the WIPO Overivew 2.0.
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 <volkswagen.网址> be cancelled.
Date: July 3, 2015