The Complainant is Pentair, Inc. of Golden Valley, Minnesota, United States of America, represented by Roetzel & Andress LPA, United States of America.
The Respondent is Ruan Hu Ruan Hu of Xuzhou, Jiangsu, China. 2. The Domain Name and Registrar
The disputed domain name is registered with (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2015. On April 1, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 2015, the Registrar transmitted by email to the Center its verification response which stated that the language of the Registration Agreement was in Chinese.
The Center sent an email communication in both Chinese and English to the parties on April 7, 2015 regarding the language of the proceedings, and invited the Complainant to submit a Complaint in Chinese or make submissions on the language of the proceedings. The Complainant filed a Chinese translation of the Complaint on April 14, 2015. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint and the translated 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 Chinese, and the proceedings commenced on April 15, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2015.
On April 23, 2015, the Respondent responded in English and Chinese that he was a franchisor of the Complainant, stating that he had not been aware he needed permission to set up a website using Pentair as part of the disputed domain name and that he would stop using the site. Upon the Complainant’s request dated April 28, 2015, the proceedings were suspended for the parties to seek to resolve the dispute on the same day. With a number of extensions, the proceedings were suspended until August 7, 2015. Upon the Complainant’s request dated August 5, 2015, the proceedings were reinstituted on August 6, 2015 with a new Response due date as August 13, 2015.
A formal response was not received by the specified due date and on August 14, 2015, the Center informed the parties that it would proceed with panel appointment shortly. On August 18, 2015, the Respondent sent an email stating that he gave up the disputed domain name and that the Complainant can transfer it any time.
The Center appointed Douglas Clark as the sole panelist in this matter on August 26, 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 United States company and sells various products including pumps, water storage tanks, pool and other associated products. The Complainant is also the registrant of various trade marks for PENTAIR around the world since 1999.
The Respondent is an individual based in Xuzhou, China. The Respondent claimed to be a distributor of Pentair products. The disputed domain name was registered on October 17, 2014. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its registered trade mark PENTAIR; that the Respondent has no rights or legitimate interests in the disputed domain name as there is no relationship between the Complainant and the Respondent nor has the Complainant given any authorization to the Respondent to use the Complainant’s trade mark; and that the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not formally respond to the Complaint. However, as noted in the procedural history section, the Respondent, both before and after the Response due date, stated that he was a distributor of the Complainant’s products and that he was willing to transfer the disputed domain name to the Complainant. 6. Discussion and Findings A. Language of the Proceedings
The language of the Registration Agreement for the disputed domain name is Chinese. The Complainant submitted a translation of the Complaint in Chinese. Normally, the language of the proceedings should be Chinese. However, 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 Panel has a discretion to determine which language to use having regard to the circumstances of the administrative proceedings. In this case, the Respondent has responded in both English and Chinese.. The Panel in these circumstances determines the language of the proceedings to be English and given that both parties have shown they understand English will render its decision in English. B. Consent to Transfer
Paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) sets out the current views of UDRP panels when a respondent consents to transfer or cancel the disputed domain name. This provides:
“Where the parties to a UDRP dispute have not succeeded in settling a case between themselves prior to the rendering of a panel decision, but the respondent has given its unilateral and unambiguous consent on the record to the remedy sought by the complainant, a panel may at its discretion order transfer (or cancellation) of the domain name on that basis alone. Some panels have done so on the basis of giving effect to party agreement as to outcome (sometimes, where the parties so request, on a no-fault basis), with a few also by deeming such consent to satisfy the requirement of the three elements of the UDRP (sometimes by virtue of deemed admission). Some panels have declined to grant a remedy solely on the basis of the respondent’s consent, but rather elected to proceed to a substantive determination of the merits; for example, because the panel needs to be certain that the complainant has shown that it possesses relevant trademark rights, or because there is ambiguity as to the genuineness of the respondent's consent, or because the respondent has not expressly admitted bad faith, or because the panel finds there is a conduct or other aspect to the proceedings which warrants a full determination on the record, or because the panel finds that the complainant has not agreed to a consent decision and the complainant is entitled to the decision for which it has paid in filing its complaint, or because the panel finds a broader interest in reaching and recording a substantive determination (e.g., in connection with patterns of conduct under paragraph 4(b)(iii) of the UDRP).”
This Panel considered this issue in detail in Rockwool International A/S v. Lin Chengxiong,WIPO Case No. D2012-0472 and found that it prefers the view in the first sentence of paragraph 4.13 of the WIPO Overview 2.0 that unambiguous consent is sufficient for a panel to order transfer or cancellation. The Panel will not repeat its reasoning here.
In this case, the Complainant has established its relevant trademark rights and standing to bring the Complaint. The Respondent has given its unambiguous consent to transfer. Accordingly the Panel will order that the disputed domain name be transferred. 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: August 31, 2015
Full & Egal Universal Law Academy