WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ANDRITZ AG v. Kun Feng, Fengkun
Case No. D2019-0427
1. The Parties
The Complainant is ANDRITZ AG of Graz, Austria, represented by Bardehle Pagenberg, Germany.
The Respondent is Kun Feng, Fengkun of Fushun, China.
2. The Domain Name and Registrar
The disputed domain name <andritz-kuesters.com> is registered with DomainName Driveway, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2019. On February 22, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 14, 2019, 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 Mach 15, 2019, the Center transmitted 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 March 18, 2019. The Respondent did not comment on the language of the proceeding.
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 March 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 11, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on April 18, 2019. 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 Austria and is a leading supplier of plants, equipment, and services for hydropower stations; the pulp and paper industry; the metalworking and steel industries; solid/liquid separation in the municipal and industrial sectors; and animal feed and biomass pelleting.
The Complainant has approximately 29,000 employees and operates in more than 280 sites in over 40 countries worldwide.
One of the subsidiaries of the Complainant is the Austrian company ANDRITZ KÜSTERS GmbH.
The Complainant is the owner of international registration number 1063621 for the trade mark ANDRITZ (the “Trade Mark”), with a registration date of July 28, 2010. The Complainant has used the Trade Mark for many years in respect of the above goods and services, including in China, where the Respondent is based.
The Complainant was previously the owner of the disputed domain name, but allowed its registration for the disputed domain name to lapse in October 2018.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered by the Respondent on November 25, 2018.
D. The Website at the Disputed Domain Name
The disputed domain name has been used in respect of a pornographic website (the “Website”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, 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.
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 Website contains both Chinese and English language content.
The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.
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 finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel notes also that the Respondent has chosen not to contest this proceeding; and is 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.
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 Mark acquired through use and registration.
The disputed domain name incorporates 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) and is almost identical to the name of the Complainant’s subsidiary. In this regard the Panel notes that the addition of the term “kuesters” does not avoid the finding of confusing similarity between the disputed domain name and the Trade Mark. See WIPO Overview 3.0, section 1.8.
The Panel therefore finds that the disputed domain name is 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 name 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 name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she 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 Respondent has made use of the disputed domain name, for commercial gain, by providing pornographic content on the Website.
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. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The evidence on record indicates that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain name, by opportunistically registering the disputed domain name shortly after its prior registration by the Complainant was allowed to lapse, and by resolving it to the Website for commercial gain.
In light of the evidence of the Respondent’s use of the Website in the manner described above, the fact the disputed domain name is almost identical to the name of the Complainant’s subsidiary and otherwise incorporates the entirety of the Trade Mark, and the Complainant’s prior registration and use of the disputed domain name prior to its opportunistic registration by the Respondent, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
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 <andritz-kuesters.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: May 2, 2019