WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Evertec Group, LLC v. 权中俊 (Quan Zhong Jun)

Case No. D2021-1519

1. The Parties

The Complainant is Evertec Group, LLC, Puerto Rico, United States of America (the “United States”), represented by Ferraiuoli LLC, United States.

The Respondent is 权中俊 (Quan Zhong Jun), China.

2. The Domain Name and Registrar

The disputed domain name <athmovi.com> is registered with Xin Net Technology Corp. (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2021. On May 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 19, 2021, 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 May 22, 2021 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 in English on June 7, 2021.

On May 22, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On June 3, 2021, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.

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 June 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 26, 2021.
The Center appointed Douglas Clark as the sole panelist in this matter on July 30, 2021. 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 owns multiple trade mark registrations for ATH MÓVIL and for ATH MÓVIL BUSINESS, including the following:

The Complainant has used the trade mark since as early as the year 2013.

The disputed domain name <athmovi.com> was registered on January 27, 2021. At the date of this Complaint, the disputed domain name resolved to a parked website displaying pay-per-click links.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

(a) The disputed domain name is confusingly similar to its trade mark. The removal of the letter “l” in the disputed domain name does not eliminate the overall notion that the designation is connected to the trade mark and the likelihood of confusion that the disputed domain name and the trade mark are associated;

(b) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant in any way and the Complainant has never granted any authorization or license to use the Complainant’s trade mark. The Respondent is not commonly known by the disputed domain name, and has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name; and

(c) The disputed domain name was registered and is being used in bad faith. The Respondent was aware of the Complainant’s trade mark at the time the Respondent registered the disputed domain name and has actively used the ATH MÓVIL trade mark to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant’s trade mark.

The Complainant requests the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action:

(i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights to;

(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.

6.1. Preliminary Issues – Language of the Proceeding

According to paragraph 11(a) of the Rules, 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.

In this case, as indicated by the Registrar, the language of the Registration Agreement for the disputed domain name is Chinese. Based on the given evidence, there is no agreement between the Complainant and the Respondent regarding the language of the proceeding. The Respondent did not respond as to the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds:

- the Complainant is fluent in English and has no knowledge of the Chinese language; and

- therefore, the Complainant would be prejudiced to partake the proceedings in a foreign language.

In accordance with paragraph 11(a) of the Rules, the Panel hereby determines that the language of the proceeding shall be English after considering the following circumstances:

- the Center has notified the Respondent of the proceeding in both English and Chinese;

- an order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding; and

- the parked website the disputed domain name resolves to is entirely in the English language.

Further, 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”.

6.2. Substantive issues

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <athmovi.com> is confusingly similar to the Complainant’s trade mark. The disputed domain name incorporates the Complainant’s ATH MÓVIL trade mark with the letter “l” deleted and the generic Top-Level Domain (“gTLD”) “.com” added to it. The gTLD “.com” is generally disregarded when considering the first element.

The Panel notes that the Complainant does not rely on any registered trademarks for ATH MÓVIL in China where the Respondent is located. 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 of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”)).

The Panel finds that the Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain name.
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 Complainant has asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s ATH MÓVIL trade mark or to apply for registration of the disputed domain name. The Respondent has not responded to any of the Complainant’s contentions. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent. Accordingly, the Respondent has no rights or legitimate interests in regard to the disputed domain name.

The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

The Panel finds the disputed domain name was registered and is being used in bad faith.

The disputed domain name was registered long after the Complainant has registered the ATH MÓVIL trade mark and the Complainant has used the trade mark for more than 7 years prior to the registration. The Panel is satisfied that the Respondent was aware of the Complainant and its ATH MÓVIL trade mark when it registered the disputed domain name. It appears to the Panel that the Respondent has registered the disputed domain name to attract Internet users to the website for commercial gain in accordance with paragraph 4(b)(iv) of the Policy as the disputed domain name resolves to a parked website displaying pay-per-click links.

For the above reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith.

The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy.

7. Decision

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 <athmovi.com> be transferred to the Complainant.

Douglas Clark
Sole Panelist
Date: August 12, 2021