The Complainant is Beiersdorf AG of Hamburg, Germany, represented by Eike Hahnemann, Germany.
The Respondent is Chaoan Yuanlong Porcelain Industy Co., Ltd of Chaozhou, Guangdong Province, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 26, 2014. On May 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 28, 2014, 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 May 28, 2014, the Center sent an email communication in both Chinese and English to the parties regarding the language of the proceedings. On the same day, 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 in both Chinese and English, and the proceedings commenced on June 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 24, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on June 30, 2014. 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 NIVEA registered and used for different kinds of goods and services including in Europe, United States of America and China.
The disputed domain name was registered on July 7, 2007. The website to which the disputed domain name resolved until July 7, 2014 was written in Chinese and English. The website featured the trademark NIVEA at the top of the page and advertised sanitary ware.
In 2010, the Complainant opposed an application by the Respondent for registration of the trademark NIVEA in class 11 in China. The Center requested the Complainant to advise if the result of the opposition if it became known during these proceedings. No notification was received from the Complainant. The Panel will proceed on the basis no decision has been reached. 5. Parties’ Contentions A. Complainant
Identical or confusingly similar
The Complainant argues that the disputed domain name is made up of the registered trademark NIVEA to which the generic or descriptive term “bath” has been added. It is therefore confusingly similar to the Complainant’s registered trademark NIVEA.
No rights or legitimate interests
The Complainant submits that the Complainant has not licensed nor otherwise permitted the Respondent to use the trademark NIVEA or to apply for, or use, any domain name incorporating this mark, and the Respondent does not have any trademark registrations for NIVEA.
Registered and 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 NIVEA trademark and it intentionally seeking to attract Internet users to the disputed domain name by the use of the trademark NIVEA. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceedings
The language of 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 the proceedings be English on the principal ground that the website under the disputed domain name was in English as well as Chinese. The Respondent did not respond to the request.
The Panel determines that English shall be the language of the proceedings. The website under the disputed domain name was in English and Chinese and designed to promote the Respondent’s business in English. There can be no doubt that the Respondent is able to handle these proceedings in English. B. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark NIVEA and the descriptive term, “bath”. The disputed domain name is clearly confusingly similar to the registered trademark NIVEA. The first part of the paragraph 4(a) of the Policy is therefore satisfied. C. Rights or Legitimate Interests
The Complainant has made out 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 disputed domain name. Clearly, in the Panel’s opinion and based on the available record, 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.
The Panel finds that the second element of the Policy is made out. 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 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: July 14, 2014
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