WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

BLIXA N.V. v. Sunqi Feng

Case No. D2018-2716

1. The Parties

The Complainant is BLIXA N.V. of Antwerp, Belgium, represented by Novagraaf Belgium NV/SA, Belgium.

The Respondent is Sunqi Feng of Suqian, Jiangsu, China, self-represented.

2. The Domain Name and Registrar

The disputed domain name <afvandevorst.com> is registered with eName Technology Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2018. On November 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2018, 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 November 29, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant filed an amended Complaint and requested that English be the language of the proceeding on November 30, 2018. The Respondent requested that Chinese be the language of the proceeding on December 3, 2018.

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 December 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 31, 2018. On December 11, 2018, the Respondent submitted an email requesting to settle with the Complainant. The Center notified the Parties if they wish to explore settlement options, the Complainant should submit a request for suspension by December 18, 2018. The Complainant did not submit a request for suspension. On January 7, 2018, the Center notified the Parties that it would proceed with panel appointment.

The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on January 14, 2019. 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 active in the fashion sector. In its Complaint, the Complainant adduces several registered trademarks (both word and device marks) protecting the sign A.F. VANDEVORST in a number of jurisdictions, e.g., Benelux trademark registration number 0751083, registered on July 12, 2004 and international trademark registration number 951346, registered on December 20, 2007 designating, inter alia, China where the Respondent is located. The Respondent registered the disputed domain name on October 28, 2017. The Complainant provides evidence that the disputed domain name was linked to an active website, mainly offering the disputed domain name for sale. Upon the Panel’s review, on the date of this decision, the disputed domain name is still linked to an active website, which although slightly modified, still mainly offers the disputed domain name for sale.

5. Parties’ Contentions

A. Complainant

The Complainant is a company active in the fashion sector, and claims to enjoy a worldwide reputation. The Complainant essentially contends that the disputed domain name is identical or confusingly similar to its trademarks for A.F. VANDEVORST, 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 requests the transfer of the disputed domain name.

B. Respondent

The Respondent’s contentions are limited to its brief request that Chinese be the language of proceedings of December 3, 2018, and to its email requesting a settlement with the Complainant of December 11, 2018, to which the Complainant did not respond. The Panel notes that the Respondent did not submit any arguments on the merits of this case.

6. Discussion and Findings

6.1 Preliminary Issue: Language of proceedings

Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.

The Complainant states that, to the best of its knowledge, the language of the Registration Agreement is Chinese. The Complainant filed both the Complaint and the Amended Complaint in English, including a motivated request that the language of proceedings be English. The Respondent, in turn, requested that Chinese be the language of the proceeding on December 3, 2018, but did not explicitly motivate such request.

The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of proceedings be English and the Respondent’s request that the language of proceedings be Chinese; the fact that the text on the website linked to the disputed domain name (both in its original and current versions) is mainly written in English, as well as the fact that the Respondent sent the Complainant an email in English, trying to sell the disputed domain name, on October 13, 2018, from which the Panel deducts that the Respondent understands, and is able to communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted delay and costs for the Complainant, who does not understand, and cannot communicate in Chinese. In view of all these elements, the Panel rules that the language of proceedings shall be English.

6.2 Substantive Issues

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 provided sufficient evidence that it has valid rights in the sign A.F. VANDEVORST based on its use and registration of the same as a trademark, incidentally commencing prior to the registration of the disputed domain name.

Moreover, as to identity or confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists only of the Complainant’s A.F. VANDEVORST trademark, save the dots after the first two letters “a” and “f”. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.7, “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”. The Panel concludes that the disputed domain name contains the entirety of the Complainant’s trademark, as its sole distinctive and dominant feature. The deletion of the dots after the two first letters “a” and “f” does not distinguish the disputed domain name and the Complainant’s A.F. VANDEVORST trademarks. Accordingly, the Panel rules that the disputed domain name is identical or confusingly similar to the Complainant’s trademarks, and the first element required by the Policy is fulfilled.

B. Rights or Legitimate Interests

The Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel notes that the Respondent is not an authorized reseller, service provider or distributor, and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. The Panel therefore considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply (see also Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements of the second requirement under the Policy.

C. Registered and Used in Bad Faith

The registration of the disputed domain name, which incorporates the Complainant’s trademarks in their entirety, as its only feature, is clearly intended to profit from, or exploit the Complainant’s trademarks and mislead and divert consumers to the disputed domain name. 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, and owns, trademarks A.F. VANDEVORST and uses these marks actively, including in China where the Respondent is located. In the Panel’s view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.

As to use of the disputed domain name in bad faith, the Complainant provides evidence that the initial version of the website linked to the disputed domain name stated: “Boost your online business & Global expansion afvandevorst.com is a transferable Brand Assets Submit Your Offer Contact Us”. The Panel also notes that, on the date of this decision, the website linked to the disputed domain name states: “afvandevorst.com is for sale If you would like to purchase this domain, please click here to make an offer”. Moreover, the Complainant provides evidence that on October 13, 2018, the Respondent offered to sell the disputed domain name (along with another domain name <afvandevorst.cn>) to the Complainant for the amount of EUR 12,000, which is an amount far in excess of the out-of-pocket costs related to the disputed domain name. In this regard, paragraph 4(b) of the Policy states that registering a domain name “primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name” constitutes evidence of bad faith. The Panel therefore rules that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith.

Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third requirement under 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 <afvandevorst.com> be transferred to the Complainant.

Deanna Wong Wai Man
Sole Panelist
Date: January 22, 2019