WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie Générale des Etablissements Michelin v. Liu Hai Wang / Shen Zhen Shi Yi Bai Dian Zi Ke Ji You Xian Gong Si
Case No. D2017-0077
1. The Parties
The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Liu Hai Wang / Shen Zhen Shi Yi Bai Dian Zi Ke Ji You Xian Gong Si of Shenzhen, Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <michelincn.com> is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2017. On January 17, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 19, 2017, 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 January 23, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On January 24, 2017, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on 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, and the proceeding commenced on February 3, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 24, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 6, 2017. 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 France and is one of the world’s most prominent tire manufacturers. The Complainant is the owner of numerous registrations in jurisdictions around the world for the trade mark MICHELIN (the “Trade Mark”), including several registrations in China (e.g., Chinese registration number 136402, registered on April 15, 2010). The Complainant is also the owner of the domain names <michelin.com.cn>, registered on June 16, 2001, and <michelin.cn>, registered on March 18, 2003.
The Respondent is apparently an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on August 14, 2016.
D. The Website at the Disputed Domain Name
The disputed domain name has not been 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, on the grounds:
1. The Complainant is a French company and does not understand Chinese;
2. The disputed domain name comprises Latin letters;
3. Translating the Complaint would involve additional expense and delay; and
4. The fact the Respondent was able to respond to the Complainant’s English language letter of demand (albeit in Chinese) indicates that he understands 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 does not consider the first ground put forward by the Complainant convincing. Given the Complainant’s presence in the Chinese market for several decades, it should not have significant difficulty arranging for translation of the Complaint. The Panel agrees however that the response sent by the Respondent to the Complainant’s letter of demand indicates the likely possibility that the Respondent is conversant in English.
The Panel also 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 and Annexures into Chinese, and would delay the resolution of this proceeding.
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 its entirety, together with the commonly-used abbreviation for China “cn” (which is also the country code Top-Level Domain Name for China), and the non-distinctive generic Top-Level Domain (“gTLD”) “.com”.
The Panel therefore finds that the disputed domain name is confusing 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 he or she 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 not been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and 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 rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and therefore finds that the requirements of paragraph 4(a)(ii) are met.
C. Registered and Used in Bad Faith
Given the notoriety of the Complainant and of its Trade Mark (including in China, where the Respondent is based), the lack of any explanation from the Respondent, and the passive use of the disputed domain name, the Panel has no hesitation in concluding the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s well-known Trade Mark at the time it registered the disputed domain name.
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 <michelincn.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: March 20, 2017