WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Fxopen Investments Inc. v. Tong Tingyun Case No. D2009-1527 1. The Parties
The Complainant is Fxopen Investments Inc. of Limasol, Cyprus, represented by Delta Quest Group, Cyprus.
The Respondent is Tong Tingyun of Xuzhou, Jiangsu Province, the People's Republic of China. 2. The Domain Names and Registrar
The disputed domain name is registered with Xin Net Technology Corp. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2009. On November 13, 2009, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On November 16, 2009, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant for the disputed domain name and providing the Respondent's contact details. On November 16, 2009, the Center transmitted an email to the parties regarding the language of the proceeding. On November 18, 2009, the Complainant submitted a request that English be the language of proceeding. The Respondent did not file any submissions with respect to the language of the proceeding by the due date. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 18, 2009. The Center has verified that the Complaint together with the amended Complaint satisfies 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced, on November 24, 2009. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 14, 2009. The Respondent did not submit any Response. Accordingly, the Center notified the parties of the Respondent's default on December 15, 2009.
The Center appointed Sebastian Hughes as the sole panelist in this matter on December 22, 2009. 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.
On January 15, 2010 the Center issued a Panel Order requesting the Complainant to provide evidence of common law use of the Complainant's trade mark the subject of this Complaint. On January 22, 2010 the Complainant filed, in response to the Panel Order, copies of the Complainant's Class 35, 36 and 41 trade mark applications filed in the Republic of Cyprus and a copy of the filing receipt for these applications. The Respondent did not file any materials in response to the Panel Order by the due date of January 25, 2010. The Decision due date was set at February 2, 2010. Due to unexpected circumstances, the Decision due date was extended to February 8, 2010. 4. Factual Background A. The Complainant
The Complainant is a company incorporated in the Republic of Mauritius, the owner of the domain name , registered since April 5, 2007 (“the Complainant's domain name”), and the applicant for registration of the trade mark FXOPEN (“the Trade Mark”) in the Republic of Cyprus. B. The Respondent
The Respondent is an entity apparently with an address in China.
The disputed domain name was registered on June 25, 2009. 5. Parties' Contentions A. Complainant
The following facts are alleged by the Complainant in the Complaint and have not been disputed by the Respondent.
The Complainant is a financial investment company with a global business licence issued by the Financial Services Commission of the Republic of Mauritius.
The Complainant is the owner of the Trade Mark and submitted applications for registration of the Trade Mark in Classes 35, 36 and 41 with the Republic of Cyprus Company Registrar on October 12, 2009. The disputed domain name is identical and/or confusingly similar to the Trade Mark and to the Complainant's domain name.
The Complainant argues that the Respondent must be considered as having no rights or legitimate interests in the disputed domain name, and the disputed domain name must be considered as having been registered and used in bad faith as the Respondent has engaged in obvious online piracy, plagiarism and/or copyright infringement in relation to the authentic and genuine domain name of the Complainant.
The Respondent is using the disputed domain name with the intent to wrongfully mislead or divert consumers or potential clients and not primarily for a bona fide business. B. Respondent
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 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. From the evidence presented in the record, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the proceeding should be conducted in English.
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 other words, it is important to ensure fairness to the parties and to maintain 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 (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) neither the Complainant nor its legal representatives have knowledge of the Chinese language;
(2) as there is an English language version of the website to which the disputed domain name is resolved (“the Website”), the Respondent must have knowledge of the English language, and the Respondent must communicate with potential clients via the Website in English;
(3) compared with Chinese, English is a global and widely spoken language; and
(4) it would be much more appropriate for English to be the language of the proceedings.
The Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
On November 16, 2009, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the language of the Registration Agreement is Chinese.
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 (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432).
The Panel finds that evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language (Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432).
In view of the above, it is not foreseeable that the Respondent will 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) that English shall be the language of the proceeding. A. Identical or Confusingly Similar
The Panel has not been assisted in this proceeding by the truly “bare bones” nature of the Complaint, and the lack of evidence filed with the Complaint as to the use of the Trade Mark by the Complainant and the use of the disputed domain name by the Respondent. While efficiency of pleading and careful selection of relevant evidence is entirely appropriate for an expedited proceeding of this nature, some probative evidence is still required. In response to the Panel Order requesting evidence of use of the Trade Mark by the Complainant, the Complainant simply filed copies of the Complainant's trade mark applications for the Trade Mark in the Republic of Cyprus. There has been no further evidence filed of use of the Trade Mark by the Complainant.
The Complainant's applications for registration of the Trade Mark in Cyprus postdate the date of registration of the disputed domain name.
Whilst the registration date for the Complainant's domain name predates the date of registration of the disputed domain name, the mere fact of registration of this domain name alone is not sufficient to establish, under paragraph 4(a) of the Policy, that the Complainant has rights in the Trade Mark. Similarly, absent any evidence of actual use of the Trade Mark, the mere fact that the Complainant has filed applications for registration of the Trade Mark in Cyprus (which postdate the date of registration of the disputed domain name) does not establish sufficient rights in the Trade Mark under the Policy. The Complainant has neither pled, nor provided evidence sufficient to ground, a claim of common law or unregistered rights in the Trade Mark.
The Panel therefore finds that, on the evidence filed by the Complainant, the Complainant has failed to establish, for the purposes of this proceeding, that it possesses rights in a relevant trade mark.
The Panel therefore holds that the Complaint has failed to fulfill the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
In light of the Panel's finding under paragraph 4(a) of the Policy, it is not necessary for the Panel to make a finding under this heading.
The Panel would simply observe that the Complainant's claim that the Respondent lacks rights or legitimate interests is essentially conclusory and unsupported. C. Registered and Used in Bad Faith
In light of the Panel's finding under paragraph 4(a) of the Policy, it is not necessary for the Panel to make a finding under this heading.
The Panel would simply observe that the Complainant is unlikely to be assisted by the fact that it has not filed any evidence going to the issue of bad faith. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Sebastian Hughes
Sole Panelist
Dated: February 8, 2010
Full & Egal Universal Law Academy