WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
OSRAM GmbH v. Wang Xiao Ping
Case No. D2018-0157
1. The Parties
The Complainant is OSRAM GmbH of Munich, Germany, represented by Hofstetter, Schurack & Partner, Germany.
The Respondent is Wang Xiao Ping of Zhengzhou, Henan, China.
2. The Domain Name and Registrar
The disputed domain name <osrami.top> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the "Registrar").
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on January 25, 2018. On January 25, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 26, 2018, 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 February 4, 2018, 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 February 6, 2018. The Respondent did not comment on the language of the proceeding by the specified due date.
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 proceedings commenced on February 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 5, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 6, 2018.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on March 20, 2018. 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 the operative company of OSRAM Licht group, an international joint stock company with its headquarters in Munich. It is one of the largest lighting industry companies in the world. The Complainant, the operating entity of OSRAM Licht AG, has been using the trademark OSRAM since its beginnings. The Complainant has also registered more than 500 OSRAM trademarks and service marks in over 150 countries and regions. This includes one of the earliest ones, German trademark no. DE86924, registered on April 17, 1906, and others. In China, they have been registered since as early as 2003 under registration no. 1922534.
OSRAM Licht AG employs approximately 26,000 people and has operations in over 120 countries. The Complainant has several production sites in China, where the Respondent is located.
The disputed domain name was registered on December 25, 2017. Based on the evidence, the disputed domain name previously resolved to a website advertising for sale of lighting and LED products.
5. Parties' Contentions
The Complainant has produced substantial evidence to show that it owns trademark rights and substantial reputation in the OSRAM mark. The evidence clearly indicates that it owned those rights long before the registration of the disputed domain name.
The Complainant asserts that the disputed domain name is identical or at least confusingly similar to marks owned by the Complaint and the Complainant's company name. It has been argued that the addition of "i" to the term "osram" is not sufficient to prevent a risk of confusion especially since the disputed domain name offered LED and lighting products for sale.
The Complainant contends that the Respondent does not own any rights in the OSRAM mark and has no authorisation from the Complaint as a licensee or authorised dealer. It contends that the Respondent has no rights or legitimate interests in the name "osram". It therefore does not have any bona fide intent in registration of the disputed domain name.
The Complainant contends that the disputed domain name was registered and is being used by the Respondent in bad faith. The Complainant asserts that: (1) OSRAM is the Complainant's famous trademark in connection with lighting products and services; (2) the Respondent uses the disputed domain name in connection with advertising and sale of lighting products; (3) the Respondent has tried to exploit the Complainants famous trademark to attract potential clients; (4) the registration of a domain name incorporating another's famous mark does not confer any rights or legitimate interests in the disputed domain name to the Respondent, but rather constitutes bad faith; and (5) there can be no question that the Respondent knew or should have known about the Complainant's trademark rights before registering the disputed domain name.
The Complainant has requested that the disputed domain name be transferred to it.
The Respondent did not reply to the Complainant's contentions.
6.1. Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, the panel is given the authority to determine a language of proceeding other than the language of the registration agreement, taking into account the circumstances of every individual case.
In view of the Complainant's request (noting also the language of the disputed domain name), the lack of response of the Respondent (such that there will be no prejudice to the Respondent, who could have put forward arguments, and was provided an opportunity to do so in English or Chinese), and the fact that the Center notified the Complaint to the Respondent in both English and Chinese, this decision is herein made in English.
6.2. Discussion and Findings
The Policy requires the Complainant prove 3 components:
(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.
A. Identical or Confusingly Similar
The Complainant has provided substantial evidence to show that it has rights in the mark OSRAM long before the disputed domain name was registered.
The Complainant has also established that the use of the letter "i" in addition to the term "osram" does not distract from the confusingly similar nature of the disputed domain name to OSRAM. I refer to the earlier decision of OSRAM GmbH v. Sun Hong, WIPO Case No. D2017-0277 ("<osfam.org>").
The first element is satisfied in the Panel's view.
B. Rights or Legitimate Interests
The Complainant has demonstrated the Respondent has no rights or legitimate interests in the disputed domain name. No evidence has been submitted by the Respondent in reply.
The second element is fulfilled in the Panel's view.
C. Registered and Used in Bad Faith
The use of the domain name to advertise for lighting products, in the Panel's view, clearly indicates the bad faith of the Respondent. Given the reputation and fame of the trademark OSRAM, the use of the disputed domain name would attract Internet traffic to the site.
In the Panel's view, it has been demonstrated that the Respondent registered and is using the disputed domain name in bad faith.
Accordingly, the last element of the Policy is satisfied.
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 <osrami.top> be transferred to the Complainant.
Deanna Wong Wai Man
Date: April 3, 2018