WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie Générale des Etablissements Michelin v. 沈洁
Case No. D2017-0645
1. The Parties
The Complainant is Compagnie Générale des Etablissements Michelin, 12, Cours Sablon, 63000 Clermont-Ferrand, France, of France, represented by Dreyfus & associés, France.
The Respondent is 沈洁 of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <michelin.xin> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 30, 2017. On March 30, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 1, 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 April 10, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On April 10, 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 proceedings commenced on April 19, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 9, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 10, 2017.
The Center appointed Douglas Clark as the sole panelist in this matter on May 19, 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 French tyre maker which manufacturers and sells tyres worldwide. It also publishes travel guides, hotel and restaurant guides, maps and road atlases. The Complainant is the registered proprietor of the trademark MICHELIN in various countries in numerous classes, including in China. These include Chinese trademark No. 136402 for MICHELIN registered on April 5, 1980 covering goods in class 12.
The disputed domain name <michelin.xin> was registered on September 29, 2015. For a period of time in 2016, the disputed domain name was directed to a website with a blog on the supposed dangers of using unregistered taxi services. The website under the disputed domain name now resolves to an inactive page.
5. Parties' Contentions
Identical or confusingly similar
The Complainant argues that the disputed domain name <michelin.xin> is made entirely up of the registered trademark MICHELIN to which the generic Top-Level Domain ("gTLD") ".xin" has been added. It is therefore identical or confusingly similar to the Complainant's registered trademark MICHELIN.
No rights or legitimate interests
The Complainant submits that the Respondent has not been known by the disputed domain name and the Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for MICHELIN.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant's rights in the MICHELIN trademark and registered the disputed domain name to attract business to its website. As such, even though the disputed domain name has not been used the Complainant alleged registration and use of the disputed domain name was in bad faith.
The Respondent did not reply to the Complainant's contentions. In response to a cease-and-desist letter the Respondent said that it intended to use the disputed domain name to create a blog.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
"Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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 proceeding."
The Complainant requested the language of the proceeding to be English on grounds that included that the Complainant is located in France and has no knowledge of Chinese and that translating the Complaint would put an undue burden on the Complainant. The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
The Respondent did not respond to the Center's preliminary determination.
This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008 1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint".
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
A. Identical or Confusingly Similar
The disputed domain name <michelin.xin> is made up of the registered trademark MICHELIN, and the gTLD ".xin". As the gTLD being a technical requirement is typically disregarded for the purpose of the confusing similarity test, the Panel finds the disputed domain name is identical to the registered trademark MICHELIN. The first part of the paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0") provides:
"While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of 'proving a negative', requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element."
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. The blog that the disputed domain name briefly resolved to does not appear to constitute a legitimate non-commercial or fair use of the disputed domain name. (The inactive page it currently resolves to cannot constitute legitimate fair use.)
The second part of the paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name <michelin.xin> was registered and is being used in bad faith.
Given the world-wide notoriety of the Complainant's MICHELIN trademark, the Panel finds it difficult to believe that the Respondent was not aware of the Complainant's trademark at the time of registration of the disputed domain name. A cursory search on the Internet would have revealed the fame of the Complainant's MICHELIN trademark.
While the disputed domain name is currently not been used, this does not prevent a finding of bad faith (see paragraph 3.3 of the WIPO Jurisprudential Overview 3.0). The use that was previously made to provide a blog on the danger of using unregistered taxi services also does not suggest any use in good faith.
Having examined all the circumstances of the case the Panel finds that the Respondent registered, used and is using the disputed domain in bad faith.
The third part of the paragraph 4(a) of the Policy is therefore satisfied.
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 <michelin.xin> be transferred to the Complainant.
Date: June 2, 2017