The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Yusuke Takeda of Nakano-ku, Tokyo, Japan; Whois Privacy Protection Service by of Shibuya-ku, Tokyo, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with GMO Internet, Inc. d/b/a Discount-D and O (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 27, 2015. On May 28, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 29, 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 May 29, 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 June 3, 2015.
On May 29, 2015, the Center transmitted an email to the parties in English and Japanese regarding the language of the proceeding. On June 2, 2015, the Complainant submitted its request that English be the language of the proceeding. On June 2, 2015, the Center received an email from the Respondent in English, but without a comment on the language of the proceeding.
The Center verified that the Complaint and 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 in English and Japanese, and the proceeding commenced on June 8, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 28, 2015. Except for the email dated June 2, 2015, the Respondent did not submit any formal response. Accordingly, on June 29, 2015 the Center notified the Respondent that it would proceed to the appointment of panel.
The Center appointed Douglas Clark as the sole panelist in this matter on July 7, 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 French tyre maker which manufacturers and sells tyres worldwide. It also publishes travel guides, hotel and restaurant guides, maps and road atlases. The Complainant is the registered proprietor of the trademark MICHELIN in various countries in numerous classes, including in Japan.
The disputed domain name was registered on August 10, 2014. The website under the disputed domain name resolves to a parking page for the registrar of the disputed domain name. 5. Parties' Contentions A. Complainant
Identical or confusingly similar
The Complainant argues that the disputed domain name is made entirely up of the registered trademark MICHELIN to which the generic Top-Level Domain ("gTLD") ".tokyo" has been added. It is therefore identical or confusingly similar to the Complainant's registered trademark MICHELIN.
No rights or legitimate interests
The Complainant submits that the Respondent has not been known by the disputed domain name and the Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for MICHELIN.
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 MICHELIN trademark and registered the disputed domain name to attract business to its website. As such, even though the disputed domain name has not been used the Complainant alleged registration and use of the disputed domain name was in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. In its email of June 2, 2015, the Respondent simply stated that it was not clear what it should do. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the Registration Agreement is in Japanese. 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 proceeding to be English on grounds that included that the Complainant's counsel did not speak Japanese and that translating the Complaint would put an undue burden on the Complainant.
The Respondent responded to this request in English stating that it was not clear what it should do.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Japanese;
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.
The Respondent did not respond to the Center's preliminary determination other than to state that it was not clear what it should do.
This Panel decided in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D20081191, 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 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 Issues A. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark MICHELIN and the gTLD ".tokyo". The disputed domain name is identical to the registered trademark MICHELIN. The first part of the paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not 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 the paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
For similar 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.
While the disputed domain name has not yet been used, this does not prevent a finding of bad faith. Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain in bad faith. (See paragraph 3.2 of the WIPO Overivew 2.0).
The third part of the 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: July 21, 2015
Full & Egal Universal Law Academy