The Complainant is E. Remy Martin & CO of Cognac, France, represented by Nameshield, France.
The Respondent is ge xiguang of Tianjin, China. 2. The Domain Name and Registrar
The disputed domain name is registered with eName Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 3, 2012. On September 4, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 4, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On September 10, 2012, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceedings. On September 10, 2012, the Complainant confirmed its request that English be the language of the proceedings. The Respondent did not comment on the language of the proceedings 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 September 18, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 9, 2012.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on October 17, 2012. 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 offers distilled alcoholic beverages, primarily cognac, throughout the world under the trademark REMY MARTIN, and the Complainant has done so apparently for centuries. The Complainant is the registered owner of a number of international trademarks consisting of the words “remy martin”, and the Complainant has owned a Chinese trademark in the Chinese translation of “remy martin” since 1997. The Complainant has registered a number of domain names having the words “remy martin” as the entirety of the second level domain, and registered the phonetic transliteration of the Chinese translation of “remy martin”, on May 15, 2007.
The Respondent is based in China. The disputed domain name was registered on August 28, 2007. 5. Parties’ Contentions A. Complainant
The Complainant requests the language of the proceedings be in English because the disputed domain name is the English phonetic transliteration of the REMY MARTIN trademark and because the website linked to the disputed domain name consists entirely of two sentences in English that identify the site and list a contact email.
The Complainant claims the disputed domain name is confusingly similar to the Complainant’s Chinese REMY MARTIN trademark because the disputed domain name is the phonetic equivalent of Complainant’s mark translated into English and because a Baidu search of both Complainant’s Chinese REMY MARTIN trademark and “rentouma” results in content related to the Complainant and its business.
The Complainant claims the Respondent has no rights or legitimate interests in the disputed domain name because (1) the Respondent is not related in any way to the Complainant, (2) the Complainant has not done business with or otherwise authorized the Respondent to make any use of the various REMY MARTIN trademarks, including registering the disputed domain name, (3) the Complainant’s Chinese REMY MARTIN trademark has been used in China and other countries for so many years and is so well known that there is likely no plausible legitimate right or use of the disputed domain name possible by the Respondent, (4) the fame of the Complainant’s trademarks renders the Respondent’s registration of the disputed domain name an infringement of the Complainant’s rights and cannot constitute a bona fide offering of goods or services, (5) the website linked to the disputed domain name displays no content or information to demonstrate any use of the disputed domain name.
The Complainant claims the Respondent has registered and is using the disputed domain name in bad faith because (1) the Complainant’s Chinese REMY MARTIN trademark was widely known at the time the disputed domain name was registered, (2) the Respondent was likely aware of the Complainant when the disputed domain name was registered, (3) the Respondent is passively holding the disputed domain name, (4) the Respondent likely registered the disputed domain name to disrupt the Complainant’s business and prevent the Complainant from reflecting its trademark in a corresponding domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of Proceedings
The language of the registration agreement for the disputed domain name is Chinese. The Complainant has requested that English be recognized as the language of the proceedings. The Respondent has not commented regarding the language of the proceedings. The Center has communicated notice of the Complaint in both the English and Chinese languages and has invited the Respondent to answer the Complaint in either language.
The minimal content featured on the website linked to the disputed domain name is displayed in English, and this demonstrates to the Panel that the Respondent has a working knowledge of the English language. Furthermore, the disputed domain name features an English language transliteration of the Complainant’s Chinese REMY MARTIN trademark. Taking the foregoing points into account along with the Respondent’s default and lack of any communication in this proceeding, the Panel concludes that English should be the language of the proceedings. Translation of the Complaint and other materials would cause unnecessary cost and delay. B. Identical or Confusingly Similar
The record shows the Complainant owns trademark rights in the translation of “remy martin” recognized in China prior to the registration of the disputed domain name in 2007. The record also shows that the Complainant’s marks are well known in China.
“The Policy requires that the disputed domain name must be identical or confusingly similar to a mark in which the Complainant has rights. This requirement can be satisfied by proof that the Complainant is the owner or licensee of a registered mark anywhere in the world – not just in the country of Respondent’s residence.” See, e.g., Advanced Magazine Publishers Inc. v. Computer Dazhong,WIPO Case No. D2003-0668. The Panel finds that the Complainant has established its rights in the Chinese REMY MARTIN trademark.
The disputed domain name is the phonetic transliteration of the Complainant’s Chinese REMY MARTIN trademark. The Panel views the “rentouma” portion of the disputed domain name as phonetically equivalent to the Complainant’s Chinese REMY MARTIN trademark. Furthermore, any person conversant in the Chinese language is likely to conclude that probably refers to the Complainant’s Chinese REMY MARTIN trademark. See Auchan v. Oushang Chaoshi,WIPO Case No. D2005-0407. It is therefore likely that consumers would be confused by the use of the phonetically equivalent “rentouma” in the disputed domain name.
The Panel concludes that the disputed domain name is confusingly similar to the Complainant’s Chinese REMY MARTIN trademark and that the requirements of paragraph 4(a)(i) of the Policy have been satisfied. C. Rights or Legitimate Interests
The Panel finds there is no evidence in the record to indicate that the Respondent is associated or affiliated with the Complainant or that the Respondent has any other rights or legitimate interests in the phrase “rentouma”. As such, the Complainant has successfully presented a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. Discussed more fully below, the Panel also finds the Respondent is not engaged in a bona fide offering of goods and services. Finally, there is no evidence in the record to indicate that the Respondent’s use of the disputed domain name is a legitimate noncommercial or fair use, or that the Respondent is commonly known by the disputed domain name.
In the absence of a Response or any communication from the Respondent, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The record shows the Complainant owns trademark rights in the Chinese REMY MARTIN trademark that precede registration of the disputed domain name. The disputed domain name is predominantly composed of the phonetic equivalent to the Complainant’s Chinese REMY MARTIN trademark. A simple Internet search for “rentouma” results in links predominantly related to the Complainant and its websites, and it is likely, given the fame of the Complainant’s business, that this was also true at the time the disputed domain name was registered. Furthermore, the Complainant registered the very similar just prior to the Respondent’s registration of the disputed domain name, and this should have put the Respondent on notice of the Complainant and the Complainant’s rights. The Panel finds that the Respondent was likely aware of the Complainant or should have known of the Complainant and its marks when registering the disputed domain name.
As to whether the Respondent is using the disputed domain name in bad faith, the record indicates that the Respondent is currently passively holding the disputed domain name.
"The question that then arises is what circumstances of inaction (passive holding) other than those identified in paragraphs 4(b)(i), (ii) and (iii) can constitute a domain name being used in bad faith? This question cannot be answered in the abstract; the question can only be answered in respect of the particular facts of a specific case. That is to say, in considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the Administrative Panel must give close attention to all the circumstances of the Respondent’s behavior. A remedy can be obtained under the Uniform Policy only if those circumstances show that the Respondent’s passive holding amounts to acting in bad faith." Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The following can be inferred from the information supplied by the Respondent to the Registrar and the information supplied in the Complaint:
1. The Respondent registered the disputed domain name in August of 2007, and in the view of the Panel, the Complainant has established that the Respondent registered the disputed domain name in bad faith;
2. On the balance of probabilities, at the time of registration, the Respondent was aware that the Complainant had an established international reputation in the REMY MARTIN marks, including the Chinese REMY MARTIN trademark, and had established an Internet presence for its business;
3. The Respondent intentionally chose to register a domain name comprised of the phonetically equivalent transliteration of the Complainant’s Chinese REMY MARTIN trademark;
4. Any attempt to actively use the disputed domain name would inevitably lead to a likelihood of confusion to the source, sponsorship, affiliation, or endorsement of the associated website among users of the Internet who would inevitably be led to believe that such a site would be owned by, controlled by, established by or in some way associated with the Complainant;
5. The contact details supplied by the Respondent to the Registrar were incorrect at the time of registration or have not been kept up to date, and this would appear to be directly in conflict with the obligations to provide accurate information required under at least clause 4 of the Fees and Payment section of the Domain Registration Agreement between the Respondent and the Registrar (see Annex 2 of the Complaint);
6. The Respondent has engaged in "passive holding" of the disputed domain name;
7. There is no information as to the business activities of the Respondent and the Complainant has made out a prima facie case that the Respondent does not have any rights or legitimate interest in the disputed domain name;
8. The Respondent has failed to file a Response or make any attempt to traverse the claims and submissions made by the Complainant;
9. Taking into account all of the above, it is unlikely any plausible actual or contemplated active use of the disputed domain name by the Respondent would be legitimate, and any such active use would instead likely be an infringement of the Complainant’s rights under trademark law.
In consideration of the above, the Panel is satisfied that the passive holding of the disputed domain name amounts to a use in bad faith by the Respondent. See Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131.
The Panel concludes that the Respondent’s conduct falls within the scope of paragraph 4(b)(iv) of the Policy. 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.
Kimberley Chen Nobles
Sole Panelist
Dated: October 31, 2012
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