WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AREVA Société Anonyme à Directoire et Conseil de Surveillance v. Li Ru Xuan / Ru Xuan Li, Jiang Feng / Feng Jiang, Hu Chun Hua / Chun Hua Hu, Xi Da Da / Da Da Xi
Case No. D2016-1959
1. The Parties
The Complainant is AREVA Société Anonyme à Directoire et Conseil de Surveillance of Courbevoie, France, represented by CSC Digital Brand Services AB, Sweden.
The Respondents are Li Ru Xuan / Ru Xuan Li of Anqing, Anhui, China, Jiang Feng / Feng Jiang of Shanghai, China, Hu Chun Hua / Chun Hua Hu of Anyang, Henan, China, Xi Da Da / Da Da Xi of Changsha, Hunan, China.
2. The Domain Names and Registrar
The disputed domain names <areva.online>, <areva.pw>, <areva.site> and <areva.tech> (the "Domain Names") are registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on September 27, 2016. On September 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On September 29, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrants of the Domain Names and providing the contact details. On October 7, 2016, the Center transmitted to the Parties an email in English and Chinese regarding the language of the proceeding. The Complainant submitted a request that English be the language of the proceeding on October 10, 2016. All the Respondents requested by separate email that Chinese be the language of the proceeding on the same day.
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 Respondents of the Complaint in English and Chinese, and the proceedings commenced on October 14, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 3, 2016. The Respondents did not submit any substantive response. Accordingly, the Center notified the Parties the commencement of panel appointment process on November 4, 2016.
The Center appointed Karen Fong as the sole panelist in this matter on November 11, 2016. 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 multinational group specializing in nuclear power and renewable energy. Founded on September 3, 2001, the Complainant is listed on the European stock exchange Euronext Paris. The Complainant underwent a formal name change on May 3, 2007, having previously operated as Société des Participations du Commissariat à l'Energie Atomique.
The Complainant has commercial and industrial operations in 41 countries spanning Europe, North America, South America, Africa and the Middle East as well as the Asia-Pacific region. It employs approximately 44,000 people around the world. In 2015 the Complainant's revenue was EUR 8.336 billion.
In China specifically, where the Respondents are located, the Complainant has maintained a presence since the mid-1980's with the construction of the Daya Bay and Ling'Ao nuclear power plants. Since then, the Complainant has developed numerous partnerships with a number of Chinese utility companies. The Complainant has approximately 850 employees in China with sales offices and production sites in 12 locations including Beijing, Shanghai and the provinces of Jiangsu, Sichuan, and Guangdong. The Complainant's Asian business is headquartered in Beijing, China. In late November 2007, the Complainant signed an EUR 18 million contract with its client CGNPC (China Guangdong Nuclear Power Company) to construct 2 EPR reactors on the Taishan site in the Guangdong province, and to provide the nuclear fuel required for their functioning for over 15 years. Since then, the Complainant and CGNPC have reaffirmed their dynamic partnership by signing an agreement in December 2009 to develop a joint engineering company in China, designed to foster cooperation on projects in China and internationally. At the same time, feasibility studies for the construction of a spent fuel treatment-recycling plant in China were launched with CNNC (China National Nuclear Corporation). For more than 20 years the Complainant has lent knowledge, expertise and support to China's emerging nuclear power industry.
The Complainant is also a strong supporter of corporate philanthropy. The AREVA Corporate Foundation was created in April 2007 in order to support humanitarian and public-interest projects underpinning the Complainant Group's commitment to society and community involvement in countries in which it develops and conducts business.
The Complainant trades under and uses the trade mark AREVA to provide its goods and services. The AREVA trade mark is registered all over the world including China. The earliest trade mark registration submitted in evidence dates back to 2001 (International registration no. 783282).
The Complainant also controls numerous domain names containing the mark AREVA including <areva.cn> and its primary domain name <areva.com>. The Complainant also maintains a website found at "www.china.areva.com" which is available in Chinese.
The Respondents registered the Domain Names on the following dates:
<areva.online> - May 27, 2016
<areva.pw> - June 5, 2016
<areva.site> - June 5, 2016
<areva.tech> - June 5, 2016
The Complainant's legal representative sent a cease and desist letter to the registrant of the Domain Names, Li Ming Quan on June 9, 2016. The registrant entered into correspondence with the legal representatives attempting to sell the Domain Names to the Complainant. The correspondence ended on August 16, 2016 without the matter being resolved.
As on August 30, 2016, the Domain Names were in the name of Li Ming Quan. The Domain Names are now in the following names:
<areva.online> - Hu Chun Hua / Chun Hua Hu
<areva.pw> - Li Ru Xuan / Ru Xuan Li
<areva.site> - Xi Da Da / Da Da Xi
<areva.tech> - Jiang Feng / Feng Jiang
The Domain Names were each connected to a pay-per-click website which was identical to each other. The Domain Names were up for sale on each of the websites (the "Websites"). At the time of the writing of the decision, the Websites have been disabled.
5. Parties' Contentions
The Complainant contends that the Domain Names are identical or confusingly similar to the AREVA trade mark, the Respondents have no rights or legitimate interests with respect to the Domain Names, and that the Domain Names were registered and used in bad faith. The Complainant requests transfer of the Domain Names, all of which it believes are related and under management and control of a single, unknown owner/registrant.
The basis of its belief that the registrants are related and under management and control of a single unknown owner/registrant are as follows:
1. The WhoIs information for the Domain Names was identical up until at least August 30, 2016.
2. On September 18, 2016, the WhoIs information for all the Domain Names was changed to four different Registrant/Admin/Tech contacts. These changes were all made within one three minute window.
3. The Registrar and Name Server information for all four Domain Names did not change despite the contact information being changed.
4. The Websites display identical content.
5. The Domain Names are identical in composition.
6. The Domain Names redirected to the same domain sale page with the same domain broker listed for each Domain.
The Respondents did not reply to the Complainant's contentions save for requesting that Chinese be the language of the proceeding.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondents have no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names were registered and being used in bad faith.
B. Preliminary Procedural Issue - Consolidation of the Proceedings
Paragraph 4(f) of the Policy allows a panel to consolidate multiple disputes between parties at its sole discretion and paragraph 10(e) of the Rules empowers a panel to consolidate multiple domain name disputes in accordance with the Policy and Rules. Neither the Policy nor the Rules expressly provide for the consolidation of multiple respondents in a single administrative proceeding. In fact, paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name provided that the domain names are registered by the same domain name holder. The panel in Speedo Holdings B.V. v Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281 reviewed the relevant UDRP decisions in relation to consolidation in multiple respondents' cases and extracted the following general principles:
1. Consolidation of multiple registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraphs 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties.
2. The administrative provider should act as a preliminary gatekeeper in such cases by determining whether or not such complaints fulfill the requisite criteria. Once a case is admitted on a prima facie basis, the respondent has the opportunity to make its submissions on the validity of the consolidation together with its substantive arguments. In the event that the panel makes a finding that the complaint has not satisfied the requisite criteria, the complainant is not precluded from filing the complaint against the individual named respondents.
In the present case, each of the Domain Names incorporates the Complainant's AREVA mark in its entirety, and each of the Domain Names has been used in an identical manner to divert consumers from the Complainant's website as well as to sell the Domain Names to the public. In addition to the contentions made by the Complainant which the Panel accepts, the Panel also notes that the original registrant entered into correspondence with the Complainant's legal representatives attempting to negotiate the sale of all the Domain Names. After the negotiations failed, the contact details of the registrants were changed. All of this point to the Complainant being the target of common conduct based on the registration and use of the Domain Names and that such conduct interferes with the Complainant's rights in the AREVA mark. Furthermore, the Complainant's claims against the Domain Names involve common questions of law and fact.
The Respondents had the opportunity but did not respond substantively to the Complaint.
Accordingly, applying the principles to the facts in this case, the Panel finds that the Complainant has established more likely than not that the Domain Names are subject to common ownership or control. The Panel finds such common control to justify consolidation of the Complainant's claims against the registrants of the Domain Names in this proceeding. The Panel further concludes in the circumstances of this case that consolidation would be fair and equitable to all Parties and procedurally efficient, and therefore will allow the consolidation as requested by the Complainant pursuant to paragraph 10(e) of the Rules.
C. Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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 proceedings. According to the information received from the Registrar, the language of the registration agreement for the Domain Names is Chinese.
The Complainant submits in paragraph IV of the Amended Complaint that the language of the proceeding should be English.
The Complaint has been submitted in English based on the following factors:
1. The Complainant is unable to communicate in Chinese and translation of the Complaint would unfairly disadvantage and burden the Complainant and delay the proceeding and adjudication of this matter;
2. Such additional delay, considering that the Respondent has already demonstrated that it is capable of cyberflight and that the Domain Names are or have been actively listed for sale, thereby posing a continuing risk to the Complainant;
3. The Domain Names comprise of Latin characters;
4. The Websites are in English;
5. The word "areva" does not carry any specific meaning in the Chinese language;
6. The Respondent understands English as he had an extended negotiation regarding the sale of the Domain Names to the Complainant in English. At no point did he request for communications to be in Chinese.
7. To allow the Respondent to dictate the course of this matter and further burden the Complainant at this juncture would contravene the spirit of the UDRP and disadvantage the Complainant.
The Panel accepts, noting also its findings regarding consolidation, the Complainant's submissions regarding the language of the proceeding. The Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that in any case all of the communications from the Center to the Parties were transmitted in both Chinese and English. There is therefore no question of the Respondents not being able to understand the Complaint. The Respondents chose not to respond to the Complaint substantively. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
D. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has rights to the trade mark AREVA.
The threshold test for confusingly similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of confusion. The trade mark would generally be recognizable within the domain name. In this case the Domain Names comprise the Complainant's registered trade mark AREVA in its entirety. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the domain suffixes ".pw", ".tech", ".online", ".site". The Panel finds that the Domain Names are identical or confusingly similar to a trade mark in which the Complainant has rights.
E. Rights or Legitimate Interests
The Respondents are not sponsored or affiliated with the Complainant in any way. The Complainant has no relationship with the Respondents and has never authorized them to use its AREVA trade mark as a Domain Name or in any other way. The Respondents are not commonly known by the Domain Names. The Respondents previously used the Domain Names as pay-per-click websites. The use of a domain name to provide sponsored links does not establish legitimate rights or interests in such domain name if such use violates the trade mark rights of a third party. Paragraph 2.6 of the of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") states that
"Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value (a result that PPC page operators can achieve by suppressing PPC advertising related to the trademark value of the word or phrase). By contrast, where such links are based on trademark value, UDRP panels have tended to consider such practices generally as unfair use resulting in misleading diversion".
The word "areva" is not a dictionary or common word. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondents. The Respondents have not responded and the Panel is unable to conceive of any basis upon which the Respondents could sensibly be said to have any rights or legitimate interests in respect of the Domain Names.
The Panel finds that the Respondents have no rights or legitimate interests in respect of the Domain Names.
F. Registered and Used in Bad Faith
To succeed under the Policy, the Complainant must show that the Domain Names have been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondents must have been aware of the Complainant's AREVA mark when they registered the Domain Names. The Domain Names incorporate the Complainant's trade mark in its entirety. The word "areva" has no ordinary dictionary meaning. In the Panel's view this is clear evidence that the registration of the Domain Names was in bad faith.
The Panel also concludes that the actual use of the Domain Names was in bad faith. The Websites offered the Domain Names for sale. Further when the Complainant's legal representatives sent the cease and desist letter, the former Respondent attempted to sell the Domain Names for more than its out of pocket expenses. These are circumstances indicating that the Respondents registered or acquired the Domain Names for the purpose of selling, renting, or otherwise transferring the Domain Names registration to the Complainant for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Names. In any event the use of the Complainant's trade mark as the dominant part of the Domain Names is intended to capture Internet traffic from Internet users who are looking for the Complainant's products and services. The Domain Names are connected to websites with sponsored PPC links. This shows a clear intention on the part of the Respondents to attract for commercial gain by confusing and misleading Internet users into believing that the Websites are authorised or endorsed by the Complainant and then attempt to redirect such users to websites displaying unrelated content.
The above is clearly bad faith under paragraphs 4(b)(i) and 4 (b)(iv) of the Policy and the Panel concludes that the Respondents' registration and use of the Domain Names are in bad faith.
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 <areva.online>, <areva.pw>, <areva.site> and <areva.tech> be transferred to the Complainant.
Date: November 30, 2016