The Complainant is Groupon, Inc. of Chicago, Illinois, United States of America ("USA"), represented internally.
The Respondent is limeifang of Wuhan, Hubei, China / Xiamen Ename Network Co., Ltd. of Xiamen, Fujian, China. 2. The Domain Names and Registrar
The disputed domain names and are 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 March 26, 2015. On March 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 27, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 30, 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 30, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On March 31, 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 and 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 in English and Chinese, and the proceeding commenced on April 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 30, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 13, 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 A. Complainant
The Complainant is a company incorporated in the State of Delaware in the USA, and the owner of numerous registrations for the trade mark GROUPON (the "Trade Mark") in the USA, the earliest registration dating from 2008. The Trade Mark has been used continuously since 2008 in relation to the Complainant's local commerce business, and is a well-known trade mark globally. B. Respondent
The Respondent is apparently an individual resident in China. C. The Disputed Domain Name
The disputed domain names were both registered on October 3, 2010. D. The Website at the Disputed Domain Name
The disputed domain names are resolved to websites containing sponsored links to the Complainant's websites and to third party websites, including websites of the Complainant's competitors (the "Websites"). 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreement for the disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) Submitting documents in Chinese would cause undue delay and substantial further expense;
(2) The registration of the disputed domain names is obviously abusive and there is inherent risk to the Complainant and to unsuspecting consumers;
(3) The disputed domain names are misspellings of an English language trade mark that have no meaning in Chinese;
(4) The Respondent appears to understand English as the Websites are only available in English.
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties' ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
The Panel however rejects the second reason submitted by the Complainant. Whether or not the registrations are abusive and whether or not there is inherent risk to the Complainant and to consumers is irrelevant to the question of the language of the proceeding.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain names.
This is a classic typosquatting case and the Panel has no hesitation in concluding the disputed domain names are confusingly similar to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain names:
(i) before any notice to the Respondent of the dispute, the Respondent's use of, or demonstrable preparations to use, the disputed domain names or a names corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain names even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent's registration of the disputed domain names. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Websites, which have not been authorised by the Complainant, and which provide sponsored links in order to generate pay-per-click revenue for the Respondent.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
In light of the manner of use by the Respondent of the Websites described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. 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 names and be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: May 26, 2015
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