WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lotus Group Limited v. Nexperian Holding Limited / Zhang Cun Shuo
Case No. D2018-0359
1. The Parties
The Complainant is Lotus Group Limited of the United Kingdom of Great Britain and Northern Ireland (the “UK”), represented by Travlaw LLP Solicitors, United Kingdom.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China (the “first Respondent”) / Zhang Cun Shuo of Nanyang, Henan, China (the “second Respondent”) (collectively, the “Respondent”).
2. The Domain Name and Registrar
The disputed domain name <dialaflights.com> is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 16, 2018. On February 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 22, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 26, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on February 28, 2018.
On February 26, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On February 28, 2018, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amendment to 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 proceedings commenced on March 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2018.
The Center appointed Francine Tan as the sole panelist in this matter on April 14, 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 travel and flights provider in the UK. It is the registered proprietor of the trade marks DIAL-A-FLIGHT and DIALAFLIGHT (stylized) in the UK (UK Trade mark Registration Nos. 2,027,383 and 2,379,521). The filing dates for these trade mark registrations are July 18, 1995 and December 3, 2004, respectively.
The disputed domain name was registered on October 11, 2017. It resolves to a parking page with links to other travel websites.
5. Parties’ Contentions
The Complainant states it has an excellent reputation within the UK. It was under the impression that it owned the disputed domain name, which had been the subject of “previous ICANN proceedings”1, the result of which had been that the disputed domain name was ordered to be transferred to the Complainant. For reasons unknown, the transfer was not completed properly, and the disputed domain name was transferred to the Respondent.
The Complainant asserts that:
(a) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
(b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(c) the disputed domain name was registered and is being used in bad faith.
In relation to point (b), the Complainant states that it has never licensed or authorized the Respondent to use its registered trade marks. There is no evidence that the Respondent has made 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. Neither is there any evidence that the Respondent has been commonly known by the disputed domain name. The Complainant’s domain name <dialaflight.com> was registered in October 1998 and the Complainant’s cited UK trade mark registrations date from as early as 1995. The Complainant is very well established in the travel industry in the UK. Further, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
In relation to point (c), the Complainant asserts that one has to bear in mind that the first Respondent has a history of abusive domain name registrations, with reference to these earlier UDRP panel decisions: Van Cleef & Arpels, S.A. v. Nexperian Holding Limited, WIPO Case No. D2017-0441; Mou Limited v. Sun Yan Qi/Luo Chao Jian/ Nexperian Holding Limited, WIPO Case No. D2017-1079; Suunto Oy v. duan xiaosong, duan xiao song/Nexperian Holding Limited, WIPO Case No. D2017-0670; and NXP B.V. v. Shen Zhen Shi Nan Huang Dian Zi You Xian Gong Si/Shenzhen nanhuang electronics co. ltd/ Nexperian Holding Limited, WIPO Case No. D2017-0296.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Preliminary Issue: Language of the Proceeding
The registration agreement is in Chinese but the Complainant requested for English to apply. The Complainant pointed out that the Respondent Nexperian Holding Limited has an English name. The disputed domain name contains English words. On the other hand, the Complainant is not able to communicate in Chinese, and to have the Complainant translated into Chinese would involve additional expense and cause a delay.
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 “[t]he Panel shall ensure that the administrative proceeding takes place with due expedition”.
The Panel is persuaded that the Respondent is sufficiently familiar with the English language and would not be prejudiced by the Panel’s decision for English to apply as the language of the proceeding. The Panel notes that the domain name comprises English words and that the Respondent Nexperian Holding Limited has been associated with other domain name registrations comprising English words (e.g., <vcajewelry.com> in Van Cleef & Arpels, S.A. v. Nexperian Holding Limited, WIPO Case No. D2017-0441; <mou-footwear.com> and <mou-london.com> in Mou Limited v. Sun Yan Qi / Luo Chao Jian/ Nexperian Holding Limited, WIPO Case No. D2017-1079; and <nxpchip.com> in NXP B.V. v. Shen Zhen Shi Nan Huang Dian Zi You Xian Gong Si / Shenzhen nanhuang electronics co.ltd / Nexperian Holding Limited, WIPO Case No. D2017-0296).
If the Respondent had any concern or objections in this regard, it could written to the Center to express its concerns or objections, but did not. Neither did it choose to respond in Chinese throughout this administrative proceeding. Furthermore, to require the Complainant to have the Complaint and case file translated into Chinese would certainly lead to a delay in the proceeding, which the Panel finds not justifiable in the circumstances of this case.
The Panel therefore concludes that it would be appropriate for English to be adopted as the language of the proceeding.
6.2 Substantive Issues
The Complainant did not provide the details of the “previous ICANN proceedings” but the Panel notes from its own inquiry that a UDRP decision was issued on February 23, 2016, in which the panel ordered a transfer of the same disputed domain name to the Complainant. (See Lotus Group Limited v. Dial A Flights, WIPO Case No. D2016-0080.)
A. Identical or Confusingly Similar
The Complainant has established it has trade mark rights in DIAL-A-FLIGHT and DIALAFLIGHT. The Panel is of the view that the disputed domain name is confusingly similar to the Complainant’s said trade marks. The addition of the letter “s” in the disputed domain name does not serve to remove the confusing similarity with the Complainant’s trade marks. The Complainant’s trade marks are clearly identifiable in the disputed domain name. Moreover, this is an example of typosquatting. It is provided in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition that “[a] domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”.
The first element of paragraph 4(a) of the Policy has been satisfied by the Complainant.
B. Rights or Legitimate Interests
The Panel finds that a prima facie case has been established by the Complainant. The Complainant’s assertions and evidence have not been rebutted by the Respondent. Moreover, the Panel has taken note of the circumstances in Lotus Group Limited v. Dial A Flights, WIPO Case No. D2016-0080 and draws an adverse inference against the Respondent, apart from the fact that the Respondent has not responded at all in this proceeding. The Panel therefore concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy has been satisfied by the Complainant.
C. Registered and Used in Bad Faith
The Panel notes that the disputed domain name resolves to a pay-per-click website with links to travel websites which are competitors with the Complainant. The Panel also draws an adverse inference from the first Respondent’s apparent pattern of behavior alluded to by the Complainant, namely in registering domain names incorporating the trade marks of third parties. The Panel agrees, as in that case, that “the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of a service on its website (paragraph 4(b)(iv) of the Policy”. The Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The third element of paragraph 4(a) of the Policy has been satisfied by the Complainant.
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 <dialaflights.com> be transferred to the Complainant.
Date: April 16, 2018