The Complainant is Tetra Laval Holdings & Finance S.A. of Pully, Switzerland, represented by Valea AB, Sweden.
The Respondent is Jin Shenghui of Linyi, Shandong, China; YinSi Baohu Yi KaiQi of Beijing, 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 March 24, 2015. On March 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2015, 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 March 26, 2015 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 March 31, 2015.
On March 26, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On March 30, 2015, the Complainant submitted its request that English be the language of the proceeding by email to the Center. The Respondent did not comment within 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 proceeding commenced on April 2, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 22, 2015. The Center received two email communications from the Respondent on April 6 and 10, 2015. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent of the proceeding to the panel appointment on April 23, 2015.
The Center appointed Douglas Clark as the sole panelist in this matter on May 4, 2015. 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 Swiss corporation which is part of the Tetra Laval Group. Tetra Pak Group is a member of the group and is multinational food processing and packaging company. The Complainant has numerous registrations around the world for the trademark TETRA PAK.
The disputed domain name was registered by the Respondent on November 26, 2014. The disputed domain name had previously been registered by another company who had agreed with the Complainant to cease with use of the disputed domain name; however, when the registration lapsed, the Respondent registered the disputed domain name. The website to which the disputed domain name now resolves is a page featuring pictures of Asian women in various stages of undress and providing links (written in Chinese) to pages with pornographic or semi-pornographic content. 5. Parties' Contentions A. Complainant
The Complainant argues that the disputed domain name is made entirely up of the registered trademark TETRA PAK and the Spanish words "vinoen" to which the generic Top-Level Domain (gTLD) ".com" has been added. It is therefore confusingly similar to the Complainant's registered trademark TETRA PAK.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name and has never been licensed or authorized by the Complainant to use the trademark TETRA PAK.
The Complainant submits that the Respondent must have known of the Complainant given the fame of the Complainant. Further, the use the Respondent has made on its website providing pornographic content shows the Respondent is using the disputed domain name for commercial gain. B. Respondent
The Respondent did not formally reply to the Complainant's contentions. The Respondent did send two emails after the Complaint was notified. The first email said in Chinese "Just seen this email, what does it mean?" The second email said in Chinese "Only registered a domain name, if it is wanted, I can sell it to him, why make a complaint?" 6. Discussion and Findings 6.1 Language of 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 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 Complainant requested the language of the proceeding to be English on grounds of the importance of maintaining fairness and the maintenance of expeditious and fair proceedings. The Complainant also argued that because the disputed domain name was in Latin characters the Respondent should understand English.
The Respondent did not respond to this request. As noted above, the Respondent sent two email communications in Chinese after the commencement of the proceeding however the Respondent did not refer to the language of the proceeding.
The final determination of the language of the proceeding lies with this Panel, who is familiar with both English and Chinese.
The Respondent has not responded to the Center's preliminary determination (which was sent in Chinese and English). 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.
These factors lead the Panel, in accordance with paragraph11(a) of the Rules to determine to follow the Center's preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Substantive Decision A. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark TETRA PAK, the Spanish words "vino en" (meaning "wine in") and the gTLD ".com". The disputed domain name is confusingly similar to the registered trademark TETRA PAK.
The first part of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not formally responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") provides:
"While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP."
The Complainant has made out a prima facie case that the Respondent has no 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.
The second part of paragraph 4(a) of the Policy is therefore satisfied. 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. The trademark TETRA PAK is well known. The content of the site under the disputed domain name has nothing to do with wine or food packaging. The links on the site suggest the Respondent is making a commercial gain from the site. Further, the links to pornographic or semi-pornographic materials tarnishes the TETRA PAK trademark. This has been found in previous UDRP cases to constitute evidence of registration and use of a domain name in bad faith. (See WIPO Overview 2.0, paragraph 3.11).
The third part of paragraph 4(a) of the Policy is therefore 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: May 11, 2015
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