WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Reckitt Benckiser LLC v. Dongbo Yin, changzhoulukasuguojimaoyiyouxiangongsi
Case No. D2016-2337
1. The Parties
The Complainant is Reckitt Benckiser LLC of Parsippany, New Jersey, United States of America ("United States"), represented by Studio Barbero, Italy.
The Respondent is Dongbo Yin, changzhoulukasuguojimaoyiyouxiangongsi of Changzhou, Jiangsu, China.
2. The Domain Name and Registrar
The disputed domain name <movefrees.com> is registered with Xin Net Technology Corp. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on November 16, 2016. On November 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 2016, 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 November 22, 2016, the Center transmitted an email to the Parties in English and Chinese regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on the same day. 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 and 4, the Center formally notified the Respondent of the Complaint in English and Chinese, and the proceeding commenced on November 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 19, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 20, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 23, 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 company incorporated in the United States and is part of the Reckitt Benckiser group of companies, one of the leading global groups in respect of consumer health, hygiene and home products. The Complainant is the owner of registrations in numerous jurisdictions worldwide for the trade mark MOVE FREE (the "Trade Mark"), including Chinese registration No. 3194907 registered on September 21, 2003.
The Respondent is apparently located in China.
C. The Disputed Domain Name
The disputed domain name was registered on March 20, 2015.
D. The Website at the Disputed Domain Name
The disputed domain name was previously resolved to a website which apparently promoted and offered for sale the Complainant's MOVE FREE joint health products under the Trade Mark, and which featured prominently at the top of each page the trade mark of a competitor of the Complainant, Viatrils. At the time of filing of the Complaint the disputed domain name was no longer being used.
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.
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 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. However, 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 has requested that the language of the proceeding be English, and points out that the product and product packaging for the Complainant's MOVE FREE products previously featured on the Website are written in English. The Complainant also notes that the Respondent did not respond to the English language letters of demand sent prior to the commencement of this proceeding, and that the Respondent has not indicated that it cannot understand English.
The Respondent, having received the Center's communication regarding the language of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding. Having received notice of the proceeding in both Chinese and English, the Respondent chose not to 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 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 considers that, in light of the Respondent's decision to take no part in this proceeding, it would be inappropriate to conduct the proceeding in Chinese, which would necessarily involve extra costs on the part of the Complainant in translating the Complaint into Chinese, and would delay the resolution of this proceeding. The Panel also considers the prominent use of the English language product and product packaging images on the Website suggests the likely possibility that the Respondent is conversant in English.
In all the circumstances, the Panel 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.
The disputed domain name comprises the Trade Mark in plural form (with the addition of the letter "s"), which does not serve to distinguish the disputed domain name from the Trade Mark in any significant way. This is a clear case of typosquatting.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. 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 the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has previously been used in respect of the Website which, without the Complainant's authorisation, promoted and offered for sale the Complainant's joint health products under the Trade Mark and also under the trade mark of its competitor, Viatrils.
The Respondent did not accurately and prominently disclose on the website the fact the Respondent has no commercial relationship with the Complainant (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.3). Furthermore, the fact the website was also prominently displaying the competing VIATRIL-S trade mark, and the fact the website was taken down at some stage following receipt of the Complainant's letter of demand and before the filing of the Complaint, all demonstrate a lack of rights or legitimate interests on the part of the Respondent in the disputed domain name.
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 therefore finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondent's clearly commercial and unauthorised prior use of the website in the manner described above, and also in light of the fact the website has subsequently been taken down following receipt of the Complainant's letter of demand, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used 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 disputed domain name <movefrees.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: January 7, 2016