WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Danish Crown A/S v. Zhao Jiafei
Case No. D2015-2012
1. The Parties
The Complainant is Danish Crown A/S of Randers SØ, Denmark, represented internally.
The Respondent is Zhao Jiafei of Huai'an, Jiangsu, China.
2. The Domain Names and Registrar>
The disputed domain names <danishcrown.info> and <danishcrown.org> ("Domain Names") are registered with Ourdomains Limited (the "Registrar").
3. Procedural History
Two separate Complaints were filed with the WIPO Arbitration and Mediation Center (the "Center") on November 5, 2015. On November 5, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On November 6, 2015, the Registrar transmitted by email to the Center its verification responses confirming that the Respondent is listed as the registrant and providing the contact details.
As the Respondent confirmed by the Registrar was same in two separate proceedings, the Complainant requested to terminate one of the proceedings and to add the Domain Name <danishcrown.org> to the current proceeding. The amended Complaint was submitted in this matter on November 12, 2015.
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").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on November 13, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 4, 2015.
The Center appointed Ellen B Shankman as the sole panelist in this matter on December 9, 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 dates of the Domain Names creations were registrations were February 24, 2014 for <danishcrown.org> and February 28, 2014 for <danishcrown.info>. The dates of the Domain Names registrations by the Respondent were confirmed by the Registrar to be Marcy 7, 2015 for <danishcrown.org> and December 27, 2014 for <danishcrown.info>. The Complainant provided evidence of multiple trademark registrations for the mark DANISH CROWN including, inter alia, Community Trademark Registration, No. 008390304 (registered on December 3, 2009) that predates the dates of the Domain Names creations and registrations for a variety of services related to moving.
The Complainant is also the registered proprietor of International Trademark Registration No. 991761 (registered on November 3, 2009) for DANISH CROWN that also predates the dates of the Domain Names creations and registrations.
The Panel also conducted an independent search to determine that the Domain Names are currently active, and resolve to Registrar "parking" pages with links providing click-through advertising.
Annex 5 of the Complaint is the cease and desist letter sent to the Respondent on July 3, 2015 from the Complainant to which the Respondent offered to sell the Domain Name <danishcrown.org> for USD 1,690.
Since the Respondent did not respond according to the UDRP Rules, except for a copy of the correspondence directly offering to sell the Domain Name <danishcrown.org> to the Complainant, the facts regarding the use and fame of the Complainant's mark are taken from the Complaint and are generally accepted as true in the circumstances of this case.
5. Parties' Contentions
The Complainant alleges it is "an international food company group with customers in more than 100 countries. The Complainant exports meat products worldwide and is today amongst the largest meat exporters in the world and the largest pork exporter. The main activities are slaughtering of pigs, sows and cattle, meat processing and other business activities closely related to these areas. The production facilities are mainly concentrated in Europe, but the Complainant also has production facilities in the United States of America.
The company was established in 1887 and has carried on business in the name or style of Danish Crown for several decades."
The Complainant further alleges, "it started using DANISH CROWN as a trademark in 1990. As one of the leading companies in its area, DANISH CROWN is a respectable and well-known trademark. The trademark, DANISH CROWN, is widely protected and the Complainant owns numerous trademark registrations worldwide."
The Complainant further alleges that the Domain Names are identical or confusingly similar to the Complainant's DANISH CROWN trademark; the Respondent has no rights or legitimate interests in the Domain Names; and the Domain Names were registered and are being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
According to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement unless the panel determines otherwise. Since the language of the Domain Names Registration Agreement is in English, and since the underlying website pages are in English, the Panel finds that the language of the proceeding is appropriately in English.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has satisfactorily proven that it has registered trademark rights for DANISH CROWN (and these rights precede the date of the Respondent's obtaining the Domain Names). Moreover, a Google search on the expression Danish Crown provides several results, all of which are linked with the Complainant.
The Panel finds that the Domain Names are identical or confusingly similar to the trademark, DANISH CROWN, in which the Complainant asserts rights. The disputed Domain Names incorporate the Complainant's trademark, DANISH CROWN, in its entirety, adding only the ".info"/".org" generic Top-Level Domain ("gTLD") suffixes. It is well established that the inclusion of the gTLD typically does not affect the determination of whether a domain name is identical or confusingly similar to the complainant's trademark. See, e.g., Rollerblade, Inc. v. Chris McCrady, WIPO Case No.D2000-0429. See also, Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110, stating "[t]he incorporation of a Complainant's well-known trademark in the registered Domain Name is considered sufficient to find the Domain Name confusingly similar to the Complainant's trademark."
Accordingly, the Panel finds that the Complainant has satisfied the first requirement that the Domain Names are identical or confusingly similar to the Complainant's trademark DANISH CROWN, under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often-impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that the burden of production shifts to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing under paragraph 4(a)(ii) of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Respondent is not related to or affiliated in any way with the Complainant.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted, and that the Respondent lacks rights or legitimate interests in either of the Domain Names. Therefore, the Complainant has satisfied the second requirement that the Respondent has no rights or legitimate interests in the Domain Names, under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that the fact that the Respondent offered to sell one of the Domain Names clearly indicates that the Domain Names were registered for the purpose of selling or otherwise transferring the Domain Name registrations to the Complainant for commercial gain in excess of the Respondent's out-of-pocket costs directly related to the Domain Names.
The Complainant also argues that due to the Complainant's extensive trademark registration around the world, it is inconceivable that the Respondent registered the Domain Names without actual knowledge of the Complainant's rights in the DANISH CROWN trademark. Given that the Respondent obtained both Domain Names, the Panel is persuaded by this argument.
The Respondent's use of the Domain Names for websites displaying click-through links diverting Internet users to sponsored links for products and services in order to presumably generate income for the Respondent constitutes evidence of bad faith registration and use of the Domain Names. See, e.g., Deutsche Telekom AG v. WWW Enterprise, Inc., WIPO Case No. D2004-1078; Deutsche Telekom AG v. Spiral Matrix, WIPO Case No. D2005-1145; L'Oréal v. PPA Media Services, Ryan G. Foo / Fundacion Private Whois, Domain Administrator, WIPO Case No. D2013-2230; Barclays Bank PLC v. Rico Martinez, WIPO Case No. D2010-1987; Swarovski Aktiengesellschaft v. Transure Enterprise Ltd., WIPO Case No. 2009-1638; Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415.
In addition, the Panel notes that the Domain Names are parked with the Registrar and contain sponsored links, from which the Respondent presumably earns click-through revenues attempting to attract consumers looking for the Complainant. There is no indication that the Respondent is making a legitimate use of the Domain Names or is using the Domain Names in connection with a bona fide offering of goods or services. The Panel finds such use satisfies bad faith under paragraph 4(b)(iv) of the Policy.
The Panel further notes the fact that the Respondent is involved in several other decisions by ICANN accredited dispute resolution service providers (including numerous decisions by WIPO) both under the name of "Zhao Jiafei" and under the alias "Intdomain / Apexed". All decisions order the Respondent to transfer the domain names to the complainants. For UDRP cases involving the Respondent under the name of "Zhao Jiafei" please see, amongst others, Compagnie Gervais Danone v. Zhao Jiafei, WIPO Case No. D2015-0833; Kering v. Zhao Jiafei, WIPO Case No. D2014-0872; Dormeuil Frères v. Zhao Jiafei, NA, WIPO Case No. D2014-1508.
Given the evidence of the Complainant's prior rights in the mark, the timing of the registration of the Domain Names by the Respondent, together with evidence that both Domain Names resolve to parked pages with sponsored ads, and what appears to the Panel to be a pattern of such behavior, the Panel finds that the Complainant has satisfied the third requirement that the Respondent has registered and is using the Domain Names in bad faith, under paragraph 4(a)(iii) 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 Domain Names <danishcrown.info> and <danishcrown.org> be transferred to the Complainant.
Ellen B Shankman
Date: December 17, 2015