The Complainant is Mammut Sports Group AG of Seon, Switzerland, represented by Isler & Pedrazzini AG, Switzerland.
The Respondent is Deminzheng of Hong Kong, SAR of 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 March 15, 2011. On March 15, 2011, the Center transmitted by email to Xin Net Technology Corp. a request for registrar verification in connection with the disputed domain name. On March 16, 2011, Xin Net Technology Corp. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On March 16, 2011, the Center transmitted an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, 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 specified due date
The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 22, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 11, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 12, 2011.
The Center appointed Douglas Clark as the sole panelist in this matter on April 19, 2011. 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.
Language of Proceedings
The registration agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant requested the language of proceedings be in English on the grounds that the Respondent’s website under the disputed domain name was written solely in English (with no link at all to a Chinese language site); was addressed to an English speaking clientele; and, was geared to English-speaking markets such as United States of America, United Kingdom of Great Britain and Northern Ireland, Australia, New Zealand. The Complainant further submitted that the Respondent thereby gave the impression to the visitor of the Respondent’s website that he/she has full command of the English language and that it would be inherently unfair to allow the Respondent to address with his/her website an English or English speaking customer group and then hide behind an agreement with a registrar in a language completely foreign in the markets Respondent's website addresses.
The Respondent has not responded to the proceedings nor to the request that the language of proceedings to be in English.
Given that that the Respondent does business in English; that the evidence in the case is all in English; the Respondent has given his/her address as being in Hong Kong, SAR of China where English is one of the official languages; and, that the Respondent has not responded to the proceedings, the Panel determines that, in the circumstances of this case, English shall be the language of proceedings for these proceedings. 4. Factual Background
The Complainant, Mammut Sports Group AG, is a Swiss company that has specialized in mountain sports since 1862. The Complainant is the owner of the word trademark MAMMUT as well as the trademark MAMMUT and device. The device is a picture of a mammoth (mammut means mammoth in German) on a red background inside a black circle. The Complainant’s trademarks are registered mainly for sporting goods, in particular mountain gear such as sports clothing and shoes, helmets, climbing ropes and karabiners and other climbing gear, sleeping bags and back packs. Mammut’s trademarks are registered in many countries of the world, including the United States, China and Switzerland. A list of Mammut’s trademark registrations and some sample copies of certificates and/or database print-outs were exhibited to the Complaint. The Complainant’s earliest registration for its trademark was in Switzerland in 1994. The Complainant’s first trademark in China was applied for in 2002 and registered in 2005. The Complainant has a trademark registration for MAMMUT and device in Hong Kong, SAR of China in Class 22, where the Respondent appears to be located.
The Complainant is also (directly or indirectly) the owner of the domain names and .
The website “www.” of the Respondent uses identical copies of MAMMUT trademark and various pictures and text is also copied from the Complainant’s website.
The disputed domain name was registered on December 8, 2010. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark MAMMUT and device and to the Complainant’s domain names and .
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name and has never traded under the name and that given the use being made of the website under the disputed domain name the disputed domain name was clearly registered and is being used in bad faith.
The Complainant relied solely on the Policy to support its case and did not cite any domain name decisions. Given that this is a clear case of infringing misuse of a domain name, the Panel considers this was a reasonable approach to take and similarly does not cite any other decisions in this decision, relying solely on the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademarks MAMMUT and MAMMUT and device as well as to the domain names and . The addition of the letter “s” does not detract from the similarity. With regard to the MAMMUT and device mark, as noted in paragraph 1.11 of the recently released WIPO Overview of WIPO Panel Views on Selected UDRP Questions 2.0:
Also, as figurative, stylized or design elements in a trademark are generally incapable of representation in a domain name, such elements are typically disregarded for the purpose of assessing identity or confusing similarity, with such assessment generally being between the alpha-numeric components of the domain name, and the dominant textual components of the relevant mark.
In this case the main features of the MAMMUT and device mark is the word MAMMUT and a picture of a mammoth. The picture reinforces the word mark and accordingly the disputed domain name is confusingly similar to the MAMMUT and device mark. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. The use made by the Respondent of the website under the disputed domain name where the Complainant’s trademark features prominently and text and pictures from the Complainant’s website are copied make it hard to imagine that the Respondent could ever establish any rights or legitimate interests. Clearly, none of the circumstances in paragraph 4(c) of the Policy, which sets out how a Respondent can prove its rights or legitimate interests, are present in this case. C. Registered and Used in Bad Faith
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith.
This case clearly falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Douglas Clark
Sole Panelist
Dated: April 22, 2011
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