The Complainant is CIN - Corporação Industrial do Norte, S.A. of Maia, Portugal, represented by J. Pereira da Cruz, S.A., Portugal.
The Respondent is Huhan, Yuming Zhong of Fuzhou, Fujian, 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 October 23, 2014. On October 23, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 28, 31, 2014 and November 6, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 6, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 11, 2014. On November 6, 2014, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On November 11, 2014, the Complainant confirmed its 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 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 November 13, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was December 3, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 5, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on December 19, 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 a Portuguese company engaged in the production and sale of paints and varnishes. The Complainant has a number of registrations around the world for the trade mark CIN, including in China. The mark was registered in China in 1996.
The Complainant during 2014 purchased the disputed domain name . Soon after acquiring the rights the disputed domain name was misappropriated by the Respondent or a party related to the Respondent transferring the disputed domain name to itself. The Complainant does not know how this was done, but it did not authorise the transfer in any way. The Complainant's former registrar, GoDaddy, has confirmed that the disputed domain name was misappropriated, but was unable to assist with its recovery because the new registrar declined to assist with a re-transfer.
The disputed domain name was created on June 5, 1997. At present, the disputed domain name does not resolve to an active webpage. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to its registered trade mark CIN; that the Respondent has no rights and legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
This case raises an important issue as to how UDRP panels should deal with a clear misappropriation of a domain name. Similar issues have been considered by UDRP panels in the following cases: James Good o/a P v. Mark Anderson, WIPO Case No. D2004-0391; Worldcom Exchange, Inc v. W, Inc.,WIPO Case No. D2004-0955; CC Computer Consultants GmbH and WAFA Kunststofftechnik GmbH v. APG Solutions & Technologies,WIPO Case No. D2005-0609; Bjorn Kassoe Andersen v. Direction International, WIPOCase No. D2007-0605; and Dr. Mehmet Kahveci, HyperLink International LTD. v. Joseph Cabier,WIPO Case No. D2010-0280. In each of these cases, the UDRP panels ordered the transfer of the disputed domain names. Each UDRP panel took a slightly different view of what was required to be proven for a complainant to succeed where there had been clear misappropriation of a domain name.
The consensus was that the burden of proof was on the complainant to make out its case. This is in line with paragraph 4(a) of the Policy that the burden of proof is on the complainant to prove that each of the three elements is present.
Nevertheless, this Panel considers that in a case such as this where there is clear proof of malpractice and there has been no response or explanation from the Respondent, the threshold for the Complainant to establish its case should not be unduly high. Panels should not place any unnecessary obstacles in the way of a complainant recovering what can be a very valuable right.
With this in mind, the Panel turns to consider its decision. A. Language of Proceedings
The language of the Registration Agreement for the disputed domain name is 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 to be English on the grounds that the disputed domain name was taken away abusively.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel.
This Panel decided in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a respondent's failure to respond to a preliminary determination by the Center as to the language of the proceeding "should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint."
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter. The fact that the disputed domain name has been misappropriated is a strong factor favouring using the language chosen by the Complainant. The Respondent by its improper acts has changed the registrar of the disputed domain name and the language of the registration agreement. It should not be able to gain any advantage by this.
The Panel therefore determines that the language of the proceedings be English. B. Identical or Confusingly Similar
The disputed domain name is, other than the generic Top-Level Domain ("gTLD") ".com", identical to the Complainant's registered trademark CIN. It is also, by definition, identical to the domain name held by the Complainant until it was misappropriated.
The first element of the Policy is made out. C. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the dispute domain name. The Respondent has not responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. 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.
Having misappropriated the disputed domain name, the Respondent would have a very difficult time establishing any rights or legitimate interests.
The Panel finds that the second element of the Policy is made out. D. Registered and Used in Bad Faith
The Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith.
None of the previous cases with similar facts cited above considered the situation where the hijacked disputed domain name was not being used. In two cases, the disputed domain name resolved to landing pages.
As pointed out in James Good o/a P v. Mark Anderson, WIPO Decision No. D2004-0391, paragraph 4(b) of the Policy sets out a non-exhaustive list of four examples of what constitutes registration and use in bad faith for the purposes of paragraph 4(a)(iii) of the Policy. In this Panel's view, proof of misappropriation of a domain name is sufficient proof by itself that the domain name has been registered and used in bad faith without further consideration of the elements under paragraph 4(b). To the extent that it is necessary to bring a decision within paragraph 4(b), this Panel considers that evidence of misappropriation is sufficient to find that the Respondent has registered the disputed domain name with the intention of selling it in breach of paragraph 4(b)(i) of the Policy.
The Panel finds that the third element of the Policy is made out. 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: December 30, 2014
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