WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dyson Technology Limited v. Zhang Dong / Zhuo Jian
Case No. D2017-1687
1. The Parties
The Complainant is Dyson Technology Limited of Wiltshire, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Gowling WLG (UK) LLP, United Kingdom.
The Respondent is Zhang Dong of Suzhou, Jiangsu, China / Zhuo Jian of Meizhou, Guangdong, China.
2. The Domain Names and Registrar
The disputed domain names <dysonbuys.com> and <dysonsale.com> are registered with EIMS (Shenzhen) Culture & Technology Co., Ltd (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on August 31, 2017. On August 31, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 13, 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 September 14, 2017, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on September 15, 2017. 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 September 22, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 13, 2017. On October 21, 2017 and October 28, 2017, the Registrar sent two emails to the Center indicating that the registrant of the disputed domain name <dysonsale.com> had changed to "zhuo jian".
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on November 13, 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 the United Kingdom, and is the intellectual property holding company of the Dyson group, a well-known designer and manufacturer of vacuum cleaners, marketed and sold under the trade mark DYSON (the "Trade Mark") since 1993.
The Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including European Union registration No. 6305262, registered since August 17, 2010; and Chinese registration No. 6334841, registered since March 28, 2010.
The Respondent is apparently a resident of China.
C. The Disputed Domain Names
The disputed domain names were both registered on the same date, August 15, 2017.
D. Use of the Disputed Domain Names
The disputed domain names have previously been resolved to fraudulent websites purporting to offer for sale vacuum cleaner products, including those manufactured and sold by the Complainant under the Trade Mark (the "Websites"). As at the date of this Decision, the disputed domain names are not being used to resolve to any active website.
5. Parties' Contentions
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are 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.
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 for several reasons, including the fact the Websites were English language websites.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not 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 English language Websites indicate that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
Upon being notified of this proceeding, the Registrar placed a lock on the disputed domain name. However, prior to Panel appointment, the Center noticed that cyberflight had occurred and contacted the Registrar to clarify the matter.
Even after multiple communications between the Center and the Registrar, the Registrar did not provide a satisfying reply as to why the Whois information had changed despite the lock status.
The Panel notes such action on behalf of the Registrar with concern.
Paragraph 8(a) of the Policy expressly prohibits domain name registrants from transferring disputed domain names to another holder during a pending administrative proceeding.
In the present proceeding, the Respondent Zhang Dong purportedly transferred the disputed domain name <dysonsale.com> to "zhuo jian" after the date of notification of the proceeding.
The Panel concludes the Respondent has engaged in cyberflight in order to delay or frustrate the proceeding, in direct contravention of paragraph 8(a) of the Policy.
The Panel further concludes that the Registrar, in direct contravention of paragraph 3 of the UDRP, did not maintain the status quo of the domain name registration.
6.3. 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 names incorporate the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7) together with the non-distinctive words "buys" and "sale".
The Panel therefore finds that the disputed domain names are 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 names 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 names, 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 names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, according to the evidence before the Panel, the disputed domain names have previously been used in respect of the Websites, which purportedly offer for sale heavily discounted vacuum cleaners, including those of the Complainant under the Trade Mark, in order to fraudulently induce consumers to make online purchases from the Websites, which purchase orders are never fulfilled by the Respondent.
The Complainant has received complaints from individuals who have placed orders and made payment on the Websites, having been redirected to the Websites by Facebook advertisements advertising heavily discounted "British top vacuum cleaners", but have not received the ordered goods. An example of the fraudulent Facebook advertisements has been annexed to the Complaint.
Such fraudulent use of the disputed domain names cannot possibly give rise to any rights or legitimate interests.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
In light of the fraudulent use of the disputed domain names in the manner described in Section B above, the Panel has no hesitation in concluding that the disputed domain names have been registered and used in bad faith.
The Panel further finds that the Respondent's acts in engaging in cyberflight and in taking down the Websites after the commencement and notification of this proceeding provide further strong grounds in support of a finding of 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 names <dysonbuys.com> and <dysonsale.com>be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: November 27, 2017