WIPO Domain Name Decision D2018-2918 for ixrayenergy.com
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Harboes Bryggeri A/S v. Ray Yao (Rayyao1018) Case No. D2018-2918 1. The Parties
The Complainant is Harboes Bryggeri A/S of Skaelskoer, Denmark, represented by PATRADE A/S, Denmark.
The Respondent is Ray Yao (Rayyao1018), Beijing, China. 2. The Domain Name and Registrar
The disputed domain name 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 December 21, 2018. On December 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 24, 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 January 9, 2019, 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 transmitted an email to the Parties regarding the language of the proceeding. The Complainant filed an amended Complaint on January 9, 2019, in which it requested that English be the language of the proceeding.
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 proceeding commenced on January 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 4, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2019. On the same date, and in reply to the Center’s notification of Respondent default, the Respondent sent a Chinese language email regarding the dispute to the Center.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 15, 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 A. Complainant
The Complainant is a company incorporated in Denmark.
The Complainant has, since 2002, produced, promoted and sold energy drinks under the trade mark X RAY (the “Trade Mark”) internationally, including in China.
The Complainant is the owner of registrations in several jurisdictions for the Trade Mark, including international registration No. 1268888, designating China, registered on August 21, 2015.
The Complainant also promotes and sells its energy drinks using the unregistered trade mark X-RAY ENERGY DRINK, including on the Complainant’s energy drink cans. B. Respondent
The Respondent is an individual apparently with an address in Beijing, China. C. The Disputed Domain Name
The disputed domain name was registered on January 29, 2018. D. Website at the Disputed Domain Name
The disputed domain name is resolved to a website that reproduces the Complainant’s various logos and trade marks, including the Trade Mark, and also the Complainant’s imagery and photographs of the Complainant’s energy drink products, in order to apparently promote and offer for sale the Complainant’s energy drinks, as well as sports, gaming and musical events (the “Website”). 5. Parties’ Contentions A. Complainant
The Complaint 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 was registered and is being used in bad faith. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. In the Respondent’s informal email to the Center, the Respondent did not address the substantive elements of the Policy, but stated that the Respondent is willing to sell the disputed domain name to the Complainant for $2,000,000.00. 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 paragraph 11 of the Rules, 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 part