The Complainant is General Electric Company of Connecticut, the United States of America represented by Kilpatrick Stockton LLP of the United States of America.
The Respondent is Mr. Shen of Guang Zhou, the People’s Republic of China. 2. The Domain Name 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 6, 2010. On November 8, 2010, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On November 11, 2010, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the disputed domain name 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”).
On November 11, 2010, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On November 13, 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.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on November 17, 2010. In accordance with the Rules, paragraph 5(a), the due date for the Response was December 7, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the parties of the Respondent’s default on December 8, 2010.
The Center appointed Sebastian Hughes as the sole panelist in this matter on December 14, 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 the State of New York in the United States of America and the owner of numerous registrations in over 100 countries worldwide for the trade mark GE (the “Trade Mark”), including in China, where the Respondent is based. The Complainant is also the owner of numerous domain names comprising the Trade Mark. B. Respondent
The Respondent is an individual apparently with an address in China. C. Disputed Domain Name
The disputed domain name was registered on September 18, 2010. 5. Parties’ Contentions A. Complainant
The following allegations were made by the Complainant in the Complaint.
The Complainant was founded in 1892 and has been doing business under the Trade Mark since 1899. Today, the Complainant is one of the world’s leading multinational media, technology, energy, industrial and financial services companies. The Complainant operates in more than 100 countries and has more than 300,000 employees worldwide. The Complainant manufactures and sells worldwide a wide range of electrical appliances, including televisions.
A valuation of the Trade Mark conducted by BusinessWeek and Interbrand, one of the world’s largest branding companies, estimated the worth of the Trade Mark in 2009 at USD 47.777 billion, making it the fourth most valuable brand in the world.
On account of the Complainant’s extensive use and promotion of the Trade Mark, the Complainant is commonly known to the trade and to consumers worldwide as simply GE.
The disputed domain name is confusingly similar to the Trade Mark, as it incorporates the Trade Mark exactly and in its entirety. The addition of common abbreviations for “the United States of America” and “television” fails to alleviate confusion, particularly in view of the fame of the Trade Mark, the worldwide presence of the Complainant and its business divisions and/or subsidiaries, and the number of domain names registered and used by the Complainant that include the Trade Mark.
The Respondent has no trade mark rights in respect of the disputed domain name and has not been licensed or authorised by the Complainant to use the Trade Mark.
The website to which the disputed domain name is resolved (the “Website”) offers for sale electronic products including televisions. It also features a blue-coloured logo which is similar to and imitates the various GE logos used by the Complainant on its websites and otherwise. The Website also features material copied directly from the Complainant’s websites, including the history of the Complainant and photographs of its famous founder, Thomas Edison, and a former chairman, Jack Welch.
The Respondent has no rights or legitimate interests in the disputed domain name and has registered and used the disputed domain name in bad faith to intentionally attract users, for commercial gain, to the Website, by creating confusion with the Trade Mark. 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. No agreement has 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) The Website is in both English and Chinese language. This demonstrates that the Respondent is proficient in English and can communicate in English;
(2) Requiring the Complainant to proceed in the Chinese language would be burdensome and would cause undue delay.
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 over 100 years 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 words “usa” and “tv”, which directly describe, respectively, the country in which the Complainant was founded and is headquartered, and one of the products produced by the Complainant under the Trade Mark (and one 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 indeed in this case enhance the likelihood of Internet consumer 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 non-commercial 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 more than 100 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 features unauthorised use of the Trade Mark, and offers for sale televisions and other electronic 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.
At some stage following filing of the Complaint, the Respondent ceased active use of the disputed domain name. The Website is no longer in action. This conduct on behalf of the Respondent is not consistent with the Respondent having any rights or legitimate interests in 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 selling on the Website televisions and other electronic products, thereby increasing the likelihood of consumer confusion. Furthermore, the Respondent has flagrantly copied onto its Website content from the Complainant’s websites, and is using a logo quite similar to the Complainant’s various GE logos. The Panel finds this amounts to further evidence of bad faith.
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 file a Response to the Complaint further supports an inference of bad faith (Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787).
The Panel also finds, in all the circumstances, the Respondent's act in ceasing active use of the disputed domain name following the filing of the Complaint amounts to further evidence of bad faith.
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
Date: December 16, 2010
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