WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
FiWaRec Valves & Regulators GmbH & Co. KG v. Yangfang, bei jing guo tai zhong xing ke ji fa zhan you xian gong si
Case No. D2017-2108
1. The Parties
The Complainant is FiWaRec Valves & Regulators GmbH & Co. KG of Föhren, Germany, represented by Rau, Schneck & Hübner, Germany.
The Respondent is Yangfang, bei jing guo tai zhong xing ke ji fa zhan you xian gong si of Beijing, China, self-represented.
2. The Domain Name and Registrar
The disputed domain name <fiwaguard.com> is registered with eName Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 27, 2017. On October 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 30, 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 November 6, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On November 9, 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.
On November 10, 2017, the Respondent sent an email to the Center stating that it was willing to transfer the disputed domain name to the Complainant free of charge and it was not able to understand English. The administrative proceeding was then suspended on November 14, 2017 upon request by the Complainant to allow the Parties to explore settlement option. On December 8, 2017, the Complainant requested the Center to reinstitute the proceeding due to unsuccessful discussion with the Respondent. The administrative proceeding was accordingly reinstituted as of December 8, 2017.
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 both Chinese and English, and the proceedings commenced on December 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2018. The Respondent did not submit any response save for email communications dated November 10, 2017 and December 15, 2017. Accordingly, the Center notified the Parties that it would proceed to Panel Appointment on January 3, 2018.
The Center appointed Francine Tan as the sole panelist in this matter on January 17, 2018. 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 German entity which owns International registration No. 1043175 for the trade mark FIWAGUARD. The registration designates and is protected in China. The goods the mark relates to include valves and pressure regulators and fire-extinguishing systems and parts thereof. The registration dates from May 2010.
The disputed domain name was registered on December 6, 2013. It resolves to a website from which fire extinguishers are marketed, and references are made on the website to the FiWaGuard-branded products of German origin.
5. Parties’ Contentions
1. The disputed domain name is identical to the Complainant’s FIWAGUARD trade mark.
2. The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent’s website only refers to the Complainant’s FIWAGUARD products which shows that the Respondent is not commonly known by the disputed domain name. It is seeking to take advantage of the reputation of the Complainant’s trade mark and products for commercial purposes, namely to sell fire extinguishers under the FIWAGUARD trade mark without the Complainant’s consent.
3. The Respondent registered and is using the disputed domain name in bad faith. It is creating the false impression that the offered goods are made in Germany by the Complainant and the website is a Chinese marketing platform offered by the Complainant. The goods do not in fact originate from the Complainant.
The Respondent did not reply to the Complainant’s contentions apart from its email of November 10, 2017 referred to under Section 3 hereinabove and a subsequent email (in Chinese) of December 15, 2017 stating, inter alia, that it is prepared to transfer the disputed domain name free of charge but requesting reimbursement of its expenses for registration, in the amount of CNY 1,000.
6. Discussion and Findings
6.1. Language of the Proceeding
The Complainant requested, notwithstanding that the Registration Agreement is in Chinese, for English to be applied to the proceeding. The Complainant pointed out that the Respondent is offering products with a description in English on its website, “www.fiwaguard.com”. This shows that the Respondent is fluent in, and has substantial knowledge of English.
The Respondent did not respond on the issue of the language of the proceeding.
Paragraph 11(a) of the Rules stipulates that: “[u]nless 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”. Paragraph 10(c) of the Rules stipulates that “The Panel shall ensure that the administrative proceeding takes place with due expedition”.
Considering the choice of the disputed domain name which relates to Latin characters Top-Level Domain (“TLD”), “.com”, and the content of the Respondent’s website, the Panel is persuaded that the Respondent has a sufficiently good grasp of the English language and would not be prejudiced by the Panel’s decision for English to apply in this proceeding. To require the Complainant to have the Complaint and annexes translated into Chinese would, on the other hand, lead to a delay in the proceeding.
The Panel therefore concludes that it would be appropriate for English to be adopted as the language of the proceeding.
6.2. Substantive Analysis
A. Identical or Confusingly Similar
The Complainant has established it has rights in the trade mark FIWAGUARD. The mark has been incorporated in its entirety in the disputed domain name. The TLD “.com” is a technical requirement of domain names and has no relevance to the issue of identity or confusing similarity with the Complainant’s trade mark.
The Panel concludes that the first element of paragraph 4(a) of the Policy has been satisfied, the disputed domain name being identical to the Complainant’s FIWAGUARD trade mark.
B. Rights or Legitimate Interests
The Panel is of the view that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent obviously knew of and was well-acquainted with the Complainant, its trade mark and its product line. Furthermore, the Panel notes that the Respondent was selling what are purportedly the Complainant’s products on its website, without disclosing the relationship between the Complainant and the Respondent; this is not a bona fide offering of goods and services. The fact that the Respondent so very quickly offered to give up the disputed domain name demonstrates the absence of any rights or legitimate interests on its part. There is no evidence that the Respondent has been known by the disputed domain name. Stating the obvious, if the contrary were true, the Respondent would certainly not have so quickly offered to give up the disputed domain name.
The Panel therefore concludes that the second element of paragraph 4(a) of the Policy has been satisfied.
C. Registered and Used in Bad Faith
For the reasons mentioned in the preceding paragraphs and in view of the content of the Respondent’s website and how it has used the disputed domain name, the Panel concludes that the registration and use of the disputed domain name have been in bad faith. The Respondent deliberately targeted the Complainant’s trade mark and potential customers. More specifically, “by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] web site or other on-line location, by creating a likelihood of confusion with the [C]omplainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] web site or location or of a product or service on [its] web site or location”. (Paragraph 4(b)(iv) of the Policy.)
The Panel therefore concludes that the third element of paragraph 4(a) of the Policy has been 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 <fiwaguard.com> be transferred to the Complainant.
Date: January 18, 2018