The Complainant is Van Cleef & Arpels SA of Villars-Sur-Glâne, Switzerland, represented by Winston & Strawn LLP, United States of America.
The Respondent is ZeroLia/Zero Lee of Chongqing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 5, 2013. On September 6, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 9, 2013, 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 11, 2013, the Center sent an email communication to the Complainant, requesting to correct the payment method in the Complaint from check to bank transfer. On September 11, 2013, the Complainant submitted an amended Complaint correcting the payment method. On September 11, 2013, the Center sent an email communication to the parties in both Chinese and English regarding the language of proceedings. On the same day, the Complainant confirmed its request that English be the language of proceedings. The Respondent did not comment on the language of proceedings by the specified due date.
The Center verified that the Complaint together with the amended 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, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2013.
On September 20, 2013, the Respondent replied in Chinese to the Center’s email of September 11, 2013 regarding the language of proceedings in which the Respondent requested that Chinese be the language of proceeding. On the same day, the Respondent replied in English to the notification of Complaint email of September 18, 2013 asking whether there were any problems with the disputed domain name. On September 23, 2013, the Center acknowledged receipt of both email communications from the Respondent and informed the Respondent regarding the language of proceedings and the Response due date.
The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on October 9, 2013.
The Center appointed Douglas Clark as the sole panelist in this matter on October 22, 2013. 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 is the registered proprietor of the trademark VAN CLEEF & ARPELS, registered principally in Class 14. The Complainant has trademark registrations globally, including international registrations and registrations in China.
The disputed domain name was registered on January 24, 2013. It resolves to a parking page with links to pages promoting and selling perfume. 5. Parties’ Contentions A. Complainant
Identical or confusingly similar
The Complainant argues that the disputed domain name is identical to the Complainant’s registered trademarks and domain names save for the removal of the ampersand and the addition of two hyphens and the generic Top-Level Domain (gTLD) “.net”.
Rights or legitimate interests
The Complainant submits that the Respondent has not been known by the name “Van Cleef & Arpels” and the Respondent has no connection with the Complainant or any of its affiliates and that the use of the disputed domain name as a parking page cannot be considered a bona fide offering of services.
Registered and being used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name, the Respondent knew of the Complainant’s rights in the trademark VAN CLEEF & ARPELS and the use being made of the disputed domain name is designed to make commercial gain for the Respondent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of Proceedings
According to paragraph 11(a) of the Rules, “[u]nless 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 to be English on the grounds that the Respondent’s website is in English and directed at English speaking consumers.
The Respondent responded to the notification of Complaint email dated September 18, 2013 in English:
“Sorry for the late reply, but who can tell me what happened. Are there problems in ? Can you add Chinese translation in the mail, let me understand any mail content.”
In a subsequent email in Chinese, the Respondent requested the language of proceedings to be Chinese and stating that the Respondent was only just learning how to build web pages. The Respondent further said that she/he did not understand what had occurred.
The website under the disputed domain name is a parking page written entirely in English. The use of English on a parking page does not necessarily indicate a familiarity by the Respondent with English. However, in a case such as this where the merits are strongly in favour of the Complainant, the Panel does not consider it appropriate to order the Complainant to go to the expense of translating the Complaint. The Panel is satisfied that the Respondent had, from the notifications sent by the Center in Chinese and English, an understanding of the nature of these proceedings and an opportunity to respond in relation to the language of proceedings and the substantive case. While a request for the language of proceedings to be in Chinese was made the request did not explain why the webpage under the disputed domain name was in English. Further, no substantive response was made to the Complaint. Accordingly the Panel determines to accept the Complaint as filed in English. If a Response had been filed in Chinese this would have been accepted. As the only pleading before the Panel is in English, the decision is issued in English. B. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark VAN CLEEF & ARPELS without the ampersand and with the addition of two hyphens and the gTLD “.net”. For purposes of determining identity or confusing similarity in UDRP proceedings, the gTLD usually does not need to be considered. The removal of the ampersand and addition of two hyphens does not substantially change the similarity between the Complainant’s registered trademark and the disputed domain name.
The Panel therefore finds the disputed domain name as being clearly identical to the registered trademark VAN CLEEF & ARPELS.
The Panel finds that the first part of paragraph 4(a) of the Policy is therefore satisfied. C. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
In the circumstance of this case, the use made by the Respondent of the website under the disputed domain name as a parking page makes it hard to imagine that the Respondent could establish any rights or legitimate interests.
None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can demonstrate its rights or legitimate interests, are present in this case.
The Panel finds the second part of paragraph 4(a) of the Policy is therefore satisfied. D. 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 within 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.”
The Panel finds that the third part of paragraph 4(a) of the Policy is satisfied. 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
Date: November 6, 2013
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