WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Audi AG v. wang
Case No. D2017-1223
1. The Parties
The Complainant is Audi AG of Ingolstadt, Germany, represented by HK2 Rechtsanwälte, Germany.
The Respondent is wang of Suzhou, Jiangsu, China.
2. The Domain Name and Registrar
The disputed domain name <奥迪.com> (<xn--huss28j.com>) is registered with 22net, Inc. (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on June 23, 2017. On June 26, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 27, 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 June 28, 2017, 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 in English and Chinese of the Complaint, and the proceeding commenced on July 4, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 24, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 25, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 27, 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 Germany and is one of the largest car manufacturers in the world.
The Complainant is the owner of numerous registrations for the trade mark AUDI in jurisdictions worldwide, including Chinese registration No. 241120, registered on January 15, 1986.
The Complainant is also the owner of registrations for the Chinese language trade mark奥迪, which is the direct phonetic transliteration of the Complainant's AUDI trade mark, including Chinese registration No. G737443, registered on April 7, 2000.
Both the Complainant's English and Chinese language trade marks, AUDI and奥迪 (the "Trade Mark(s)"), have been recognised as well-known trade marks by the Trademark Review and Adjudication Review Board in China.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Names
The disputed domain name was registered on June 26, 2003 and was transferred to the Respondent on July 26, 2012.
D. Passive Use of the Disputed Domain Name
The disputed domain name has not been used.
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been 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 following grounds:
(i) The Complainant is a company located in Europe and has no familiarity with the Chinese language;
(ii) To proceed in Chinese, the Complainant would need to engage specialised translation services at a disproportionately high cost, which would impose a burden on the Complainant;
(iii) The Respondent's email address comprises Latin characters; and
(iv) The Respondent has registered several other domain names comprising Latin character and English words.
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 the submissions put forward by the Complainant do not support the likely possibility that the Respondent is conversant in English. Furthermore, the Panel does not find the Complainant's first ground convincing, given the Complainant's status as a company operating globally and in particular its
long-standing presence in the Chinese market. However, the Panel considers that, in light of the Respondent's decision to take no part in this proceeding, and the fact that the disputed domain name is not being used, the Respondent will not be prejudiced if the language of the proceeding is 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 Marks acquired through use and registration.
The disputed domain name comprises the AUDI Trade Mark in its entirety and is, excluding the generic Top-Level Domain ("gTLD") ".com" (in accordance with previous UDRP decisions), identical to the AUDI Trade Mark. It also comprises the奥迪 Trade Mark (which is phonetically identical to the AUDI Trade Mark) in its entirety.
The Panel therefore finds that the disputed domain name is identical or confusingly similar to the Trade Marks. Accordingly, the first element under paragraph 4(a) of the Policy has been made out.
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 Marks. 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 it 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) of the Policy are met.
C. Registered and Used in Bad Faith
Given the notoriety of the Complainant and of its Trade Marks (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 Trade Marks at the time of registration of 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 <奥迪.com> (<xn--huss28j.com>) be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: August 8, 2017