WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
3 Suisses International v. Lihua Wang
Case No. D2008-1142
1. The Parties
The Complainant is 3 Suisses International of France, represented by Espace Juridique Avocats, France.
The Respondent is Lihua Wang of China.
2. The Domain Name and Registrar
The disputed domain name is registered with Xiamen eName Network Technology Corporation Limited dba eName Corp.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2008. On July 29, 2008, the Center transmitted by email to Xiamen eName Network Technology Corporation Limited dba eName Corp a request for registrar verification in connection with the domain name at issue. On July 31, 2008, Xiamen eName Network Technology Corporation Limited dba eName Corp 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 acknowledged receipt of the Complaint to the Parties on August 1, 2008.
On August 2, 2008, the Center received an email from qiker@ in response to the Center's Acknowledgement of Receipt of Complaint asking whether the Acknowledgement may be issued in Chinese. The Center replied advising that the Respondent would have 20 days from formal notification of the Complaint to file a Response.
In response to a notification by the Center that the Complaint was administratively deficient arising under paragraph 1 and paragraph 3(b)(iii) of the Rules, the Complainant filed an amended Complaint on August 5, 2008. The Center further notified the Parties that the Complaint was submitted in English while the language of the registration agreement was in Chinese, requesting the Parties' comments, to which the Complainant responded on August 6, 2008 with reasons why the language of the proceedings should be English. No comments were received from the Respondent by the due date of August 8, 2008. On August 12, 2008, the Center informed the Parties as such. On the same day, the Center received an email from qiker@ with a bare request that Chinese be the language of the proceedings.
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”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 12, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 1, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 2, 2008.
The Center appointed Soh Kar Liang as the sole panelist in this matter on September 4, 2008. 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 French company. It holds the trade marks used by its company group on clothes, shoes domestic appliances and furniture among other things. The businesses of the Complainant's company group extends to France, China, Germany, Belgium, Czech Republic, Spain, Slovakia, Italy, Portugal, Hungary and Romania. Over 1 million catalogues of the Complainant's products are distributed annually in France alone.
The Complainant's trade marks include:
- Community trade mark no. 00 0372 698 for 3 SUISSES registered on December 29, 1999;
- International trade mark no. 703109 for TROIS SUISSES registered on August 3, 1998;
- International trade mark no. 703811 for 3 SUISSES registered on August 3, 1998.
(for convenience, these three trade marks will be collectively referred to as the “3 SUISSES Trade Marks”)
The Complainant issued a letter of demand by email against the Respondent's registration of the domain name on November 19, 2007. The demand initiated a response from qiker@. A chain of correspondence followed between the Complainant and qiker@ which ended with an email from qiker@ at 16:58. The whole chain of correspondence took place on November 19, 2007.
The Respondent registered the disputed domain name on November 19, 2007, about one hour after his response to the letter of demand. The disputed domain name does not resolve to a website on the World Wide Web.
The Complainant issued letters of demand to the Respondent on June 5, 2008, June 19, 2008 and July 18, 2008 in relation to the disputed domain name. The Complainant did not receive any reply from the Respondent to these letters of demand.
5. Parties' Contentions
A. Complainant
The Complainant contends that:
(1) The disputed domain name is confusingly similar to the 3 SUISSES Trade Marks and the Complainant's company name;
(2) The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has no commercial relationship with the Complainant or its subsidiaries and the Complainant has never authorized or licensed the Respondent to use any of its trade marks; and
(3) The disputed domain name was registered and is being used in bad faith. The Respondent has not replied to the Complainant's letters of demand and thereby failed to show use of the disputed domain name in good faith. The Respondent also registered the domain name thereby showing that the Respondent is engaged in a strategy of registering domain names based on the 3 SUISSES Trade Marks.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
6.1 Language of the Proceedings
As the Registration Agreement was in Chinese, in accordance with paragraph 11(a) of the Rules, the default language of the proceedings should have been Chinese. Be that as it may, paragraph 11(a) also allows the Panel to determine the language of the proceedings having regard to the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for purposes of determining the language of the proceedings. In other words, it is important 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 burden to the Parties and undue delay to the proceedings (e.g., Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical applicance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593).
The Complainant has requested for English to be the language of the proceedings based on the following reasons:
(1) The Complainant is a French company located in France;
(2) The Complainant had corresponded with the Respondent in English prior to the Complaint;
(3) The Complainant had sent letters of demand to qiker@ in relation to the domain name and received replies in English. The same email address, qiker@, was used by the Center to communicate with the Respondent.
It is noted that the Respondent (or his representative) has made a bare request for the language of the proceedings to be Chinese. This Panel views such request as a neutral consideration because the Respondent has not given any cogent reason (or for that matter, any reason) for the request.
There is before this Panel evidence demonstrating that the email address qiker@ is an email contact address of the Respondent and is used by a person identified as “John Xu”. Although there is insufficient information to determine whether “John Xu” and the Respondent are one and the same person, this Panel does not doubt that the user of qiker@ operated it with authority of the Respondent. Therefore, for the purposes of these proceedings, all communication from qiker@ will be treated as emanating directly from the Respondent. The Panel further notes that this email address was also provided by the Registrar for the Respondent in its registrar verification.
The chain of correspondence between the Complainant and qiker@ following the Complainant's letter of demand relating to the domain name throws significant light on the question of whether the Respondent has a competent command of the English language. The emails from qiker@ were written in English and exhibit clear and intelligent content. The impressive turnaround time of replies from qiker@ within a matter of minutes to a few hours leaves little doubt that the Respondent is sufficiently competent in and conversant with the English language.
The Respondent has also been given ample opportunity by the Center to obstruct the Complaint and the Complainant's request for English to be the language of the proceedings. The Respondent has chosen neither to contest the proceedings nor the Complainant's request regarding the language of the proceedings.
The Panel further notes that the Center has throughout the proceedings issued its case-related communications with the Respondent, including the Center's Complaint notification documents, in both English and Chinese. The Respondent has chosen not to participate in the proceeding and has been notified of its default. The Panel is satisfied that the Center's approach has been fair and appropriate, reserving the discretion to the Panel to determine the appropriate language of proceedings.
In view of the above, it is not foreseeable that the Respondent will be prejudiced, should English be adopted as the language of the proceedings. Further, the Complainant will be spared the hardship and burden of grappling with Chinese as the language of the proceedings. Having considered all the matters above, this Panel determines under paragraph 11(a) that English shall be the language of the proceedings.
6.2 Decision
In order to succeed in these proceedings, the Complainant must satisfy the Panel that:
1) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
2) the Respondent has no rights or legitimate interests in respect of the domain name; and
3) the disputed domain name has been registered and is being used in bad faith
in accordance with paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The 3 SUISSES Trade Marks are owned by the Complainant and precede the registration of the disputed domain name by many years. The 3 SUISSES Trade Marks are prior trade marks in which the Complainant has rights.
It is noted that the disputed domain name comprises the words “three” and “suisses” without an intervening space character. The space character is not a valid character for use in domain names. When deriving domain names, invalid characters (e.g., punctuation, diacritics, spaces) have to be omitted and it is common practice to ignore them when comparing domain names with trade marks (see L'Oreal, Lancôme Parfums et Beauté & Cie v. InfoChina ltd,WIPO Case No. D2008-0981; LANCOME PARFUMS ET BEAUTE & CIE, L'OREAL v. 10 Selling,WIPO Case No. D2008-0226). Therefore, the space character will be ignored when comparing the disputed domain name with the 3 SUISSES Trade Marks. In accordance with established practice, the top level domain portion, “.com”, will also be ignored in the comparison (e.g. Deceuninck NV v. William Vaughan, smtm investments ltd,WIPO Case No. D2007-1911).
The word “three” is the English word for the numeral “3”. Although “three” is visually different from “3”, they are identical when read in English. The word “three” and the numeral “3” are alternative representations which may be substituted one against the other in a sentence without any change in meaning or pronunciation. “3 suisses” is without doubt confusingly similar to “three suisses”. Further, “three” is also the English equivalent of the French word “trois”. Europe forms a significant part of the Complainant's market and holds a very large population bilingual in English and French which will likely be confused by the semantic similarity (see Société pour l'Oeuvre et la Mémoire d'Antoine de Saint Exupéry – Succession Saint Exupéry – D'Agay v. Perlegos Properties,WIPO Case No. D2005-1085; Compagnie Generale Des Etablissements Michelin – Michelin & Cie. v. Graeme Foster,WIPO Case No. D2004-0279). As such, “trois suisses” and “three suisses” are also confusingly similar.
In the circumstances, this Panel is of the view that the disputed domain name is confusingly similar to trade marks (namely the 3 SUISSES Trade Marks) in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has submitted that the Respondent has no commercial relationship with the Complainant or its subsidiaries and the Complainant has never authorized or licensed the Respondent to use any of its trade marks. This position has neither been denied nor refuted by the Respondent. Further, by not filing a Response or responding to the Complainant's letters of demand relating to the disputed domain name, the Respondent has decided not to justify a right or legitimate interest in respect of the disputed domain name.
It is also telling that when faced with a letter of demand in relation to , the Respondent's sole argument appears to be that the Respondent was unaware of the Complainant's trade mark rights and believed that the domain name was registered before the Complainant's trade marks. The Respondent did not provide any cogent reason for its adoption of the domain name. Instead, the Respondent registered the disputed domain name on the same day as the letter of demand. There is no discernable or valid reason for the Respondent to adopt the disputed domain name.
As such, there is a prima facie inference that the Respondent has no rights or legitimate interests in the disputed domain name which remains uncontroverted. This Panel accordingly concludes that that the Respondent has no rights or legitimate interest in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The disputed domain name does not resolve to an active website. On that basis, the Complainant sought to rely on prior panel decisions which held that the concept of a domain name being used in bad faith is not limited to positive action but also includes inaction, which in practical terms meant that the domain name was not being used at all (see Advance Magazine Publishers Inc. and Les Publications Condé Nast S.A. v. ChinaV,WIPO Case No. D2005-0615; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
The reasoning of these cases is highly persuasive. However, it remains for this Panel to determine whether the disputed domain name was not used at all. Unfortunately, there is insufficient information before this Panel to make such a finding. Although no website appears to be hosted under the disputed domain name, it should be borne in mind that a domain name is not just useful for hosting a website. Domain names are able to address valid and effective technical facilities on the Internet without the mediation or existence of a website (e.g., mail services, file transfer services).
Regardless of whether the disputed domain name was active or passive, there are certain factual circumstances which are highly suspicious. In particular, the unrefuted fact that the disputed domain name was registered on the same day but after receipt of the letter of demand cannot be overlooked.
Paragraph 4(b)(ii) of the Policy states the following non-exhaustive instance of bad faith use and registration:
“[the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct.”
In the face of the Complainant's letter of demand relating to , it is inconceivable that the Respondent was unaware of the Complainant's trade mark rights.
Although the registration of the disputed domain name did not prevent the Complainant from reflecting any of the 3 SUISSES Trade Marks in a corresponding domain name, prevention of a variant of the Complainant's trade mark from being reflected in a corresponding domain name could itself be an instance of bad faith in the right circumstances (see Picanol, Naamloze Vennootschap (N.V.) v. zhejiang qingsheng jituan yanjiusuo fangji xianluban kaifa weixiu zhongxin shaoxingxian yangxunqiaozhen jiangqiao qingsheng jituan,WIPO Case No. D2008-0968).
In the present case, the Respondent has indeed prevented the Complainant from reflecting a variant of the Complainant's trade mark in a corresponding domain name in at least two instances – (1) , and (2) the disputed domain name which has been shown to be confusingly similar to the 3 SUISSES Trade Marks. Seen in the light of the Respondent's highly suspicious conduct of registering the disputed domain name within the day of receiving the Complainant's demand, the inference of bad faith use and registration is difficult to cast aside.
The failure of the Respondent to file a Response or provide any explanation despite the ample opportunities raises an adverse inference that the Respondent has no justifiable explanation. Based on the above circumstances, this Panel is convinced that the disputed domain name was registered and is being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Soh Kar Liang
Sole Panelist
Date: September 30, 2008
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