WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Magnat Audio-Produkte GmbH v. 丁日国(ding ri guo)
Case No. D2021-2253
1. The Parties
The Complainant is Magnat Audio-Produkte GmbH, Germany, represented by Quarles & Brady LLP, United States of America.
The Respondent is 丁日国 (ding ri guo), China.
2. The Domain Name and Registrar
The disputed domain name <hecoaudio.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 July 12, 2021. On July 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 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 July 19, 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 in English an amendment to the Complaint on July 22, 2021.
On July 19, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the administrative proceeding. On July 22, 2021, the Complainant submitted a Chinese translation of the Complaint. The Respondent did not comment on the language of the administrative 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 proceeding commenced on July 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 18, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 31, 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 leading international audio equipment company incorporated in Germany and founded more than sixty years ago, manufacturing and selling its audio equipment under the trade mark HECO (the “Trade Mark”). The Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including German registration No. 935 410, registered on September 15, 1975; Chinese registration No. 2021529, registered on November 14, 2002; and International registration No. 919 545 (designating China), registered on January 10, 2007.
The Complainant is also the owner of the domain name <heco-audio.de> comprising the Trade Mark.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on March 16, 2015.
D. Use of the Disputed Domain Name
The disputed domain name is resolving to a Chinese and English language website, offering the disputed domain name for sale (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(a), 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, and, upon receiving notice from the Center of the language of the Registration Agreement, provided a courtesy translation of the Complaint into Chinese.
The Panel would have accepted a response in Chinese, but 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 notes that there is some evidence which suggests that the Respondent might be conversant in English (e.g., the use of the English language on the website resolving from the disputed domain name and the choice of the English term “audio” in the disputed domain name), that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese.
The Panel is also 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) together with the word “audio”, a word directly descriptive of the goods marketed and sold by the Complainant for over sixty years.
Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (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 it 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 disputed domain name has been offered for sale via the Website. It is stated on the Website as follows:
“This premium domain is for sale! 该高端域名正在出售！If you would like to purchase this domain name, please click here to make an offer.”
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.
In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1).
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
In light of the Respondent’s offer to sell the disputed domain name via the Website, the Panel finds that bad faith registration and use has been made out under paragraph 4(b)(i) of the Policy.
The Panel also considers that, in all the circumstances, it is inconceivable that the Respondent was not aware of the Complainant and of the Complainant’s rights in the Trade Mark at the time of registration of the disputed domain name.
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 <hecoaudio.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: September 14, 2021