WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bayer Intellectual Property GmbH v. 刘金力(liujinli)
Case No. D2020-0910
1. The Parties
The Complainant is Bayer Intellectual Property GmbH, Germany, represented by BMP Legal, Germany.
The Respondent is 刘金力(liujinli), China.
2. The Domain Name and Registrar
The disputed domain name <resochin.com> is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2020. On April 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 16, 2020, 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 April 17, 2020 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 amended Complaint on April 24, 2020.
On April 17, 2020, 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 in the amended Complaint filed on April 24, 2020. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amended 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 April 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 17, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 22, 2020.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on May 28, 2020. 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 Bayer Intellectual Property GmbH is a German company located in Leverkusen. It is the registered owner of the RESOCHIN trademarks. The Complainant’s group Bayer is active in the global health care, nutrition and plant protection industries, and operates globally including in China, where the Respondent is located, through its local subsidiary Bayer China Ltd. The Complainant claims its whole group has over 300 affiliates and more than 115,000 employees worldwide. Moreover, the Bayer Pharmaceuticals division operates in more than 100 countries, and Resochin is one of its products that has been widely used in the prevention of malaria. The Complainant also claims that since the global outbreak of the COVID-19 disease, the Resochin product has been included in the catalogue of potentially helpful products by the Chinese authorities and has attracted broad media coverage.
The Complainant owns several trademark registrations for RESOCHIN, including, for example, the international trademark registration number 327579, registered on November 23, 1966, which has recently been extended to China. The Complainant claims it has extensively used the marks and the marks have achieved high reputation in the world. The disputed domain name was registered on February 19, 2020. The Complainant submits evidence that the disputed domain name directed to an inactive page. On the date of this decision, the disputed domain name still leads to an inactive webpage.
5. Parties’ Contentions
The Complainant essentially contends that the disputed domain name is identical or confusingly similar to its trademarks for RESOCHIN, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith.
The Complainant claims that its trademarks are well established and widely recognized. The Complainant particularly submits that there are no justifications for the use of its trademarks in the disputed domain name, and contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes registration and use in bad faith. Moreover, the Complainant claims the Respondent registered the disputed domain name soon after its Resochin product attracted a lot of media coverage on coronavirus treatment due to the discussion on a Chinese government press, and this timing of registration also suggests the Respondent’s bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Preliminary Issue: Language of the Administrative Proceeding
Pursuant to paragraph 11(a) of the Rules, 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 language of the Registration Agreement is Chinese, and the Complaint was filed in English. On April 17, 2020, the Center notified the Complainant that the language of the Registration Agreement is Chinese. On April 24, 2020, the Complainant confirmed its request that the language of the proceeding be English, and amended the original English Complaint. The Respondent did not make any comments on the language of the proceeding and did not submit any arguments on the merits.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English; the fact that all communications from the Center have been sent in both Chinese and English to the Parties, and the Respondent did not comment on the language of the proceeding and did not submit arguments on the merits (while he had the right to do so in Chinese or English); the fact that the Respondent owns several other domain names containing some English words which suggests the Respondent’s ability in understanding English; and the fact that Chinese as the language of the proceeding could lead to unwarranted delay and costs for the Complainant. This is especially so with the current international pandemic environment, there is a public risk for further delayed consideration of the current case. In view of all these elements, the Panel rules that the language of the proceeding shall be English.
6.2. Discussion and Findings on the Merits
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has shown that it has valid rights in the mark RESOCHIN based on its intensive use and registration of the same as a trademark globally.
Moreover, as to the identity or confusing similarity, the disputed domain name wholly incorporates the Complainant’s registered trademark RESOCHIN. The applicable Top-Level Domain (“.com” in this case) is viewed as a standard registration requirement, and may as such be disregarded by the Panel. See in this regard the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.11.1. Moreover, the WIPO Overview 3.0, section 1.7, states: “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v. Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662).
Accordingly, the Panel finds that the disputed domain name is identical to the Complainant’s registered trademark, and that the Complainant has satisfied the requirements of the first element under the Policy.
B. Rights or Legitimate Interests
On the basis of the evidence and arguments submitted, the Panel holds that the Complainant has made out a prima facie case that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, and is not making legitimate noncommercial use or fair use of the Complainant's trademarks. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply.
Furthermore, the Panel notes that the nature of the disputed domain name, being identical to the Complainant’s trademark, carries a high risk of implied affiliation with the Complainant (see also WIPO Overview 3.0, section 2.5.1). There is also no evidence that the Respondent is commonly known by the disputed domain name.
On the basis of the foregoing, the Panel finds that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy.
C. Registered and Used in Bad Faith
The Panel holds that the registration of the disputed domain name was clearly intended to take unfair advantage of the Complainant’s trademarks, by using such trademarks to mislead and divert consumers to the disputed domain name. Given the distinctiveness and fame of the Complainant’s trademarks, including in the Respondent’s home jurisdiction China, the Panel holds that the registration of the disputed domain name, clearly targeting the Complainant’s well-known trademarks, was obtained in bad faith.
Moreover, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned registered trademarks in RESOCHIN and used these extensively. But the Respondent still registered the disputed domain name at a timing soon after the Complainant group’s Resochin product attracted broad media coverage on coronavirus treatment due to the Chinese government press on February 18, 2020. In the Panel’s view, the preceding elements clearly establish the bad faith of the Respondent in registering the disputed domain name.
As to use of the disputed domain name in bad faith, the disputed domain name resolves to an inactive website. UDRP panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See WIPO Overview 3.0, section 3.3. The Panel finds so under the circumstances of this case.
The Panel has reviewed all elements of this case, and in particular: the identity of the disputed domain name to the Complainant’s trademarks, the high degree of distinctiveness and fame of the Complainant’s trademarks, and the fact that the timing of the registration of the disputed domain name affirms the finding of the Respondent’s intention of domain name hijacking. On the basis of the foregoing elements, the Panel rules that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith.
Finally, the Respondent failed to provide any response or evidence to establish his good faith or absence of bad faith. The Panel therefore finds that the Complainant has satisfied the requirements of the third element under the Policy.
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 <resochin.com> be transferred to the Complainant.
Deanna Wong Wai Man
Date: June 1, 2020