WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Proximus, NV van publiek recht v. Wang Xiao Qin
Case No. D2018-1847
1. The Parties
The Complainant is Proximus, NV van publiek recht of Brussels, Belgium, represented by Office Kirkpatrick, SA, Belgium.
The Respondent is Wang Xiao Qin of Yun Cheng, Shanxi, China.
2. The Domain Name and Registrar
The disputed domain name <proximus.tech> is registered with Chengdu West Dimension Digital 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 13, 2018. On August 13, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 14, 2018, 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 August 16, 2018, the Center sent an email in Chinese and English to the Parties 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 proceedings commenced on August 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 11, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 12, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on September 18, 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 one of the largest Belgian telecommunication operators and first registered the PROXIMUS trademark on May 1, 1994 (Belgian Trademark Registration No. 0537039) and has been using it in connection with its main telecommunications business since a rebranding exercise in 2015. A Google search of the PROXIMUS trademark yields a first hit to the Complainant's website.
According to the documentary submissions of the Complainant and as confirmed by the Registrar, the Respondent registered the disputed domain name on December 1, 2017.
The Respondent is an individual in Yun Cheng, Shanxi, China who at the time of the Complaint appears to be the registrant of some 3,729 domain names.
The disputed domain name previously resolved to a website displaying advertising in French for telephone operators, mobile phone subscriptions and TV subscriptions and a statement in English that the domain name may be for sale for USD 1,999.
The Complainant filed a URS complaint on April 16, 2018 and the disputed domain name was suspended following the Respondent's default on May 1, 2018.
5. Parties' Contentions
The Complainant's contentions are as follows:
Identical or confusingly similar
The disputed domain name is identical to the PROXIMUS trademark because it incorporates in its entirety the PROXIMUS trademark with only the addition of the Top-Level Domain ("TLD") (i.e., ".tech"). Moreover, the addition of ".tech" to the trademark contributes to the likelihood of confusion because the domain refers to information and communication technologies ("ICT") goods and services provided by the Complainant, which are the subject of the Complainant's trademark.
No rights or legitimate interests
The Complainant further argued that the Respondent has no rights or legitimate interests in the disputed domain because the Respondent (i) is not affiliated with or otherwise authorized by the Complainant to use the PROXIMUS trademark (ii) did not have any prior rights or legitimate interests in the disputed domain name as the PROXIMUS trademarks were registered before the disputed domain name (iii) the Respondent has no trademark rights to PROXIMUS and (iv) does not use the name Proximus for its business or in connection with its own goods or services.
The disputed domain name was registered and is being used in bad faith.
The Respondent is engaged in cybersquatting activities and registered the disputed domain name knowing it was identical to earlier rights in the Complainant's field of business. The Respondent shows an intention of bad faith commercial and unfair use of the disputed domain name because it resolves to a webpage that takes advantage of the Complainant's reputation by attracting Internet users and then redirecting them via hyperlinks to competitor's websites. The juxtaposition on the Respondent's website of the Complainant's services with the services of its direct competitors creates further confusion and misleads the consumer into thinking that there is a link between the disputed domain name and the Complainant. This adversely impacts the Complainant's business by diverting existing or new customers.
The Respondent's website offers the disputed domain name for sale for USD 1,999.
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 is 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 the disputed domain name is registered in Latin characters instead of Chinese script, the website under the disputed domain names is not in Chinese, the Complainant has no knowledge of Chinese, and requiring the Complainant to submit all the documents in Chinese would cause delay and substantial expenses.
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, translating the Complaint would cause unnecessary delay in this matter and in this case, the only languages used on the website under the disputed domain name were French and English.
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.
6.2 Substantive Issues
A. Identical or Confusingly Similar
The disputed domain name <proximus.tech> is identical to the Complainant's PROXIMUS trademark. The relevant comparison to be made is with the second-level portion of the domain name only (i.e., "proximus"), as it is well established that the TLD (i.e., ".tech") may generally be disregarded for this purpose. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.11 ("[t]he applicable Top Level Domain ('TLD') in a domain name (e.g., '.com', '.club', '.nyc') is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.")
The Panel notes that the Complainant does not have a registered trademark for PROXIMUS in China. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel's further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview 3.0).
The first element of paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
Section 2.1 of the WIPO 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 use of the disputed domain name which identically reproduces the Complainant's trademark to display sponsored links to websites of the Complainant's competitors is not a bona fide use of the disputed domain name, nor can such use qualify as a legitimate noncommercial or fair use.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent did not provide relevant evidence to rebut it.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
The fact that the disputed domain name reproduces the Complainant's trademark identically, together with the use to which it has been put, strongly suggests targeting of the Complainant's trademark at the time of registration of the disputed domain name.
This case falls within paragraphs 4(b)(i) and 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your website or location."
This is clearly demonstrated by the fact that the disputed domain name resolves to an active website that attracts Internet users and then redirects them via hyperlinks to competitor's websites from which the Respondent most likely generates revenue, thereby adversely affecting the Complainant's business by diverting existing or new customers to the profit of the Respondent.
Further the disputed domain name was offered for sale at a price of USD 1,999. This is far in excess of any apparent registration costs. This falls within paragraph 4(b)(i) of the Policy. The offer at this price is clear evidence of an intention to acquire and sell the disputed domain name for consideration in excess of out-of-pocket expenses.
The Panel finds that the disputed domain name <proximus.tech> was registered and is being used in bad faith.
The third part of 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 <proximus.tech> be transferred to the Complainant.
Date: October 3, 2018