The Complainant is Lesaffre et Compagnie S.A. of Paris, France, represented by Hogan Lovells (Paris) LLP, France.
The Respondent is calvin woo of Hangzhou, Zhejiang, China; YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service) of Beijing, China. 2. The Domain Name and Registrar
The disputed domain names , and are registered with HiChina Zhicheng Technology Ltd. (the "Registrar"). 3. Procedural History
The (English language) Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 5, 2015. On August 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 10, 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 August 11, 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 (English language) Complaint on the same day.
On August 11, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, the Complainant confirmed its request that English be the language of the proceeding. On August 13, 2015, the Respondent requested that Chinese be the language of the proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint in both Chinese and English, and the proceeding commenced on August 18, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 7, 2015. Similar (Chinese language) Responses were filed with the Center on August 15, 2015 and September 3, 2015 respectively.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 11, 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 France; the world's largest producer and manufacturer of yeast and yeast related products; and the owner of numerous registrations worldwide for the trade marks SAF, SAF INSTANT and SAF-INSTANT (the "Trade Mark(s)"), the earliest dating from February 1993, including registrations in China, the earliest dating from July 1993 . B. Respondent
The Respondent is an individual resident in China. C. The Disputed Domain Names
The disputed domain names were all registered on the same date, May 10, 2014. D. The Website at the Disputed Domain Names
The disputed domain names are all resolved to the same English and Chinese language website (the "Website"), which promotes the business of Hangzhou Focus Corporation, a manufacturer of food additives and ingredients and a key manufacturer of bakery yeast in China, with customers in China and in over 50 countries worldwide. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Marks, 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 contends that the disputed domain names are vastly different to the Trade Marks, the Respondent has rights or legitimate interests in the disputed domain names, and the disputed domain names have not been registered and used in bad faith. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreements 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 Agreements.
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) The disputed domain names are registered under the ".com" and ".net" generic extensions;
(2) The disputed domain names identically reproduce the Complainant's SAF- family of trade marks in conjunction with English terms, namely "yeast" and "instant";
(3) The content of the Website is also available in English and therefore the Respondent is also targeting English speakers; thus, the Respondent is likely to have a good understanding of the English language;
(4) Given that the activities carried out via the disputed domain names are blatantly illegitimate and detrimental to the Complainant, it would be disproportionate to require the Complainant not to submit the present Complaint in English as this would result in additional expenses and unnecessary delay for the Complainant.
The Respondent has requested that Chinese be the language of the proceeding for the following reasons:
(1) The parties have not agreed that the language of the proceeding should be English;
(2) The Complainant has offices in China and, before the filing of the Complaint, its representatives contacted the Respondent in China and engaged with them using Chinese, which demonstrates that the Complainant is able to conduct the proceeding in Chinese;
(3) The Respondent is a Chinese national who does not possess sufficient proficiency in English to be able to submit the Respondent and annexures in English;
(4) The disputed domain names were registered in China, the language of the Registration Agreements is Chinese and the Center has an office in China, so the proceeding should be conducted in Chinese.
In exercising its discretion to use a language other than that of the Registration Agreements, 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 fourth reason submitted by the Complainant. Whether or not the registrations are blatantly illegitimate and detrimental 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:
(1) It will accept the filing of the Complaint and the amended Complaint in English;
(2) It will accept the filing of the Responses in Chinese; and
(3) It will render its decision in 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 Marks acquired through use and registration which incidentally predate the date of registration of the disputed domain names.
Two of the disputed domain names are identical to the Complainant's SAF INSTANT and SAF-INSTANT Trade Marks. The third disputed domain name comprises the Complainant's SAF Trade Mark in its entirety together with the word "yeast", the product in respect of which the Complainant is the world leader.
The Respondent's bare assertion that the disputed domain names and the Complainant's Trade Marks are vastly different does not stand up to scrutiny.
The Panel has no hesitation in concluding the disputed domain names are confusingly similar to the Trade Marks. 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 a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name 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 name 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 name, 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 Marks. The Complainant has prior rights in the Trade Marks 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 Website, which has not been authorised by the Complainant, and which promotes the competing business of Hangzhou Focus Corporation, a direct competitor of the Complainant in the field of yeast and yeast related products.
The Respondent's contention that it has rights in the disputed domain names, simply by virtue of their registration, does not assist the Respondent in demonstrating rights or legitimate interests under the Policy. Similarly, the Respondent's arguments that the Complainant is based in France, Hangzhou Focus Corporation is based in China, and that Hangzhou Focus Corporation produces many more food additive products in addition to yeast, do not assist the Respondent in establishing any rights or legitimate interests for the purposes of the Policy.
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 Complainant has made a prima facie showing and 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 Website described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
The fact the Complainant is headquartered in France, and Hangzhou Focus Corporation is based in China, does not assist the Respondent for the purposes of the Policy. The Panel notes the Complainant's uncontested evidence is that it has been using the Trade Marks in China since the early 1980s. The Panel also notes it is claimed on the Website that Hangzhou Focus Corporation sells its products to customers in over 50 countries worldwide.
The Panel finds the fact Hangzhou Focus Corporation manufactures and sells food additives other than yeast and yeast related products does not prevent the likelihood of consumer confusion. The Complainant is the world's leading producer of yeast and yeast related products, under the Trade Marks, and the Website prominently promotes the yeast and yeast related products of Hangzhou Focus Corporation.
For all the foregoing reasons, the Panel has no hesitation in concluding 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: September 25, 2015
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