WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vitens N.V. v. Jerryyan, Jerry
Case No. D2015-1648
1. The Parties
The Complainant is Vitens N.V. of Utrecht, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
The Respondent is Jerryyan, Jerry of Jinan, Shandong, China, self-represented.
2. The Domain Name and Registrar
The disputed domain name <vitens.com> is registered with eName Technology Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 17, 2015. On September 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 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 September 21, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On September 22, 2015, the Complainant confirmed its request that English be the language of the proceeding. On September 22, 2015, the Respondent requested that Chinese be the language of the proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint in both English and Chinese, and the proceeding commenced on September 30, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 20, 2015. The Response was filed with the Center in Chinese on October 20, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 27, 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 company incorporated in the Netherlands and claims to be the largest drinking water company in the Netherlands, with over 5.4 million customers in the Netherlands, and over 20 million customers worldwide. The Complainant is the owner of registration No. 0697221 in the Benelux and International Registration No. 773852 (designating Germany) for the trade mark VITENS (the "Trade Mark"), with registration dates of March 27, 2001 and December 10, 2011, respectively.
The Respondent is an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on April 22, 2013.
D. The Website at the Disputed Domain Name
The disputed domain name is resolved to an English language landing page with the wording "coming soon…" and an English language email address (the "Website").
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. In particular, the Complaint provided evidence that the disputed domain name was offered for sale by the Respondent for the price of EUR 48,000.
The Respondent contends that the Complainant does not enjoy civil rights in the Trade Mark in China, the Respondent has rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was not registered and is not being used in bad faith.
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 order 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 made the following submissions in support of its request that English be the language of the proceeding:
(1) The pre-Complaint correspondence with the Respondent was in English;
(2) The text on the Website is in English;
(3) After the Complainant sent the Complaint to the Respondent, the Respondent replied in English; and
(4) All of the above indicates that the Respondent is conversant in English.
The Respondent made the following submissions in support of its request that Chinese be the language of the proceeding:
(1) The Respondent and the Registrar are in China and use Chinese;
(2) The Parties have not agreed that English shall be the language of the proceeding;
(3) The Respondent did not contact the Complainant and the pre-Complaint email correspondence was not sent from the Complainant's email address;
(4) The Respondent does not understand English; and
(5) In accordance with the Rules, the language of the proceeding should be Chinese.
In exercising its discretion to use a language other than that of the registration agreement, the panel has to exercise such discretion judicially 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 Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that it will accept the filing of the Complaint in English and the filing of the Response in Chinese, and it will render its Decision in 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.
The disputed domain name is identical to the Trade Mark.
For the purposes of the Policy, the fact the Complainant does not possess any trade mark registrations in, or designating, China is irrelevant.
Accordingly, the first limb of paragraph 4(a) of the Policy has been made out.
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 disputed domain name:
(i) Before any notice to the respondent 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 (as an individual, business, or other organization) has been commonly known by the disputed 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 disputed 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. The Complainant has prior rights in the Trade Mark which precede the Respondent's registration of the disputed domain name by over 10 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 has been used (or preparations have been made to this effect) in connection with a bona fide offering of goods or services.
The Respondent does not dispute the Complainant's evidence that the Respondent has made no use of the disputed domain name other than the landing page at the Website. The Respondent makes the bare assertion that the Respondent registered the disputed domain name in order to set up a website about how to make cakes, but has filed no evidence to support this fanciful suggestion.
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 a 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.
Accordingly, the second limb of paragraph 4(a) of the Policy has been made out.
C. Registered and Used in Bad Faith
The Respondent denies that it sent an email to the Complainant's representative offering to sell the disputed domain name for EUR 48,000. It also asserts that the offer-to-sell email to the Complainant's representative was sent via "cesyes@[A]" by someone with whom the Respondent has no connection. Notwithstanding that the disputed domain name currently is resolved to an English language landing page showing the wording "coming soon…" and an email address "posada@[A]", according to the evidence provided by the Complainant on record (Annex 3 to the Complaint), the disputed domain name was previously resolved to a similar landing page save for only the change in the email address showing "cesyes@[A]". Therefore, it is not unreasonable for the Panel to draw the inference that the Respondent is likely to be associated with the email address "cesyes@[A]" from which the offer-to-sell email was sent to the Complainant.
The Panel considers that this is a case of bad faith under paragraph 4(b)(i) of the Policy, which is evidence of bad faith registration and use.
Accordingly, the third limb of paragraph 4(a) of the Policy has been made out.
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 <vitens.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: October 30, 2015