WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Henner v. Zhaoxia Su

Case No. D2021-1808

1. The Parties

The Complainant is Henner, France, represented by TAoMA Partners, France.

The Respondent is Zhaoxia Su, China.

2. The Domain Name and Registrar

The disputed domain name <hnner.com> is registered with DropCatch.com LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2021. On June 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 9, 2021, 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.

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 of the Complaint, and the proceedings commenced on June 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 19, 2021.

The Center appointed Douglas Clark as the sole panelist in this matter on August 2, 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 is a company in the development and management of insurance solutions and provides such services to more than 10,000 companies and healthcare to more than 2 million members.

The Complainant owns several trade mark registrations for HENNER, including the following:

The disputed domain name <hnner.com> was registered on August 21, 2020. At the date of this Complaint and this decision, the disputed domain name resolves to a website containing links to pornography and online gambling services.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

(a) The disputed domain name is confusingly similar to its trade mark. The deletion of the word “e” 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 HENNER trade mark to increase Internet user traffic and app downloads. The Respondent is using the disputed domain name 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.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <hnner.com> is confusingly similar to the Complainant’s trade mark. The disputed domain name incorporates the Complainant’s HENNER trade mark with only the letter “e” removed. The generic Top-Level Domain (“gTLD”) “.com” is generally disregarded when considering the first element.

The Panel notes that the Complainant does not rely on any registered trade marks for HENNER in China where the Respondent is located. The ownership of a trade mark is generally considered to be a threshold standing issue. The location of the trade mark, 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 trade mark 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 HENNER trade mark or to apply for registration of the disputed domain name. There is no evidence that the Respondent has used or is planning to use the HENNER trade mark or the disputed domain name for a bona fide offering of goods and services. In addition, 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 Panel finds that the Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Based on the given evidence, 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 HENNER trade mark. The HENNER trade mark is used by the Complainant to conduct its business and the Complainant has used the trade mark for its insurance and insurance-related services for over 6 years. The Panel is satisfied that the Respondent was aware of the Complainant and its HENNER trade mark when he or she 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.

The current advertisements for online gambling and pornography on the website that the disputed domain name resolves to establish the Respondent is making a commercial gain from the website by attracting users to generate click through revenue. Further, the pornographic materials on the website, tarnish the HENNER trade mark. This has been found in previous UDRP cases to constitute evidence of registration and use of a domain name in bad faith. (See WIPO Overview 3.0, section 3.12).

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, <hnner.com> be transferred to the Complainant.

Douglas Clark
Sole Panelist
Date: August 12, 2021