The Complainant is VingCard Elsafe AS of Norway represented by Bryn Aarflot AS of Norway.
The Respondent is Hu Qing / jing hu of People’s Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2010. On September 21, 2010, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the disputed domain name. On September 25, 2010, B, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details.
The Center has verified that the 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 October 5, 2010. In accordance with the Rules, paragraph 5(a), the due date for the Response was October 25, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the parties of the Respondent’s default on October 26, 2010.
On September 28, 2010, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On September 30, 2010, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the due date.
The Center appointed Sebastian Hughes as the sole panelist in this matter on November 1, 2010. 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 Norway and the owner of numerous registrations worldwide for the trade mark VINGCARD (“the Trade Mark”). B. Respondent
The Respondent is an individual apparently with an address in China.
The disputed domain name was registered on November 7, 2008. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant first commenced making high quality door locks in 1864. In the more than 135 years since, the Complainant has been responsible for transforming lock making from a simple craft into a multi-billion dollar, high-tech industry. Although its product line has expanded greatly, guestroom locks continue to be the core of the Complainant’s business. The Complainant is the worldwide leader in guestroom security for hotel door locks and in-room safes in the hospitality industry. The Complainant has products installed in more than 35,000 properties worldwide, securing in excess of 6 million hotel rooms. The Complainant’s extensive international network covers more than 165 countries worldwide. The current number of territories with the Complainant’s guestroom security products is 217.
The Trade Mark does not have any specific semantic meaning in English, Chinese or any other language. The disputed domain name consists of the Trade Mark and the word ”lock”. Lock is a purely descriptive word describing the goods which were offered at one time on the Respondent’s website to which the disputed domain name is resolved (“the Website”). When customers see the combination of VINGCARD and LOCK in the disputed domain name, which has been used for promoting locks and locking systems, they will assume that the owner of the disputed domain name is the Complainant or that there is some kind of commercial relationship between the Complainant and the Respondent, contrary to fact.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Respondent offered on the Website the same products manufactured and sold by the Complainant, namely, various types of intelligent door locks and smart cabinet locks. In addition, the Website featured the Trade Mark.
By making the public believe that the Respondent is affiliated or in some other way connected with the Complainant, the Respondent will benefit from the goodwill and reputation connected with the Trade Mark and with the Complainant’s goods and services.
By registering and using the disputed domain name, the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s Website or location or of a product on the Respondent’s Website or location. 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 the Rules, paragraph 11, 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 language of the proceeding should be English.
Paragraph 11(a) 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 the maintenance of 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) As the Complainant’s language of domicile is Norwegian and the Respondent’s is Chinese, it would be reasonable to use a neutral language presumably familiar to both parties, which in the opinion of the Complainant is the English language. Since English is not the native language of either of the parties, it would be reasonable for the proceeding to be conducted in English;
(2) The translation costs would be unreasonably high in the event the Complainant was required to translate the Complaint and exhibits into Chinese. Further, such translation would be time-consuming and would likely delay the proceeding;
(3) The textual string of the disputed domain name is written in English, namely by combining the Trade Mark with the English word ”lock”;
(4) There appears to have been an English language version of the Website;
(5) The products shown on the Chinese language version of the Website also included phrases written in the English language, e.g. “Insert to gain power”, “The chip faces inside” and “Radio frequency card”; and
(6) The Complainant alleges that all of these points suggest that the Respondent is conversant and proficient in the English language.
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.
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 sufficient 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, supra).
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 finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate by many decades the date of registration of the disputed domain name.
UDRP panels have consistently held that domain names may be found identical or confusingly similar to a trade mark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662).
It is also established that the addition of generic terms to a disputed domain name has little, if any, effect on a determination of confusing similarity between the domain name and the mark (Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253); furthermore, mere addition of a generic or descriptive term does not exclude the likelihood of confusion (PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189).
The addition of the generic word “lock”, which directly describes the products produced by the Complainant under the Trade Mark as well as the products of the Respondent featured on the Website, does not serve to distinguish the disputed domain name from the Trade Mark in any way, and may in this case enhance the likelihood of Internet user confusion.
The Panel finds that the disputed domain name is confusingly similar to the Trade Mark.
The Panel therefore holds that the Complaint has fulfilled the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organisation) have been commonly known by the domain name even if you have acquired no trade mark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by many years. The Complainant has therefore shown a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption (Do The Hustle, LLC v.Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, it is clear that the disputed domain name has been used to attract Internet users to the Website, which featured unauthorised use of the Trade Mark, and offered for sale intelligent door locks and similar products in direct competition with the Complainant.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfills the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
“By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with the Complainant, contrary to fact. There is a strong likelihood of confusion as to source, sponsorship, affiliation or endorsement of the Website and the products offered by the Respondent on the Website.
Not only does the disputed domain name comprise the Trade Mark, but the Respondent has been, without authorisation, using the Trade Mark on the Website for commercial gain, thereby increasing the likelihood of consumer confusion.
The Panel therefore finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
The Panel also considers that, in the circumstances of this case, the failure of the Respondent to respond to the Complainant’s letters of demand and failure to file a Response to the Complaint further support an inference of bad faith (Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787).
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 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.
Sebastian Hughes
Sole Panelist
Dated: November 12, 2010
Full & Egal Universal Law Academy