The Complainant is 比泽尔制冷设备有限公司 (BITZER Kühlmaschinenbau GmbH) of Sindelfingen, Germany, represented by Rouse Consultancy (Shanghai) Ltd., China.
The Respondent is Long Term ELEC.CO., LTD of Ningbo, Zhejiang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 17, 2015. On September 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On September 18, 2015, the Center sent an email communication to the parties in Chinese and English regarding the language of the proceeding. On September 21, 2015, the Complainant requested that Chinese be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the 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 Chinese and English, and the proceeding commenced on September 24, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 14, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 15, 2015.
The Center appointed Douglas Clark as the sole panelist in this matter on October 21, 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 German company that sells air compressors worldwide. The Complainant is the registered proprietor of the trademark BITZER and device in various countries, including China, in numerous classes. Its registrations in China include registration no. 818711 in Class 7.
The disputed domain name was registered on September 19, 2012. The website under the disputed domain name promotes the sale of air compressors. 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 BITZER and the generic description "compressor" to which generic Top-Level Domain ("gTLD") ".com" has been added. It is therefore confusingly similar to the Complainant's registered trademark BITZER.
No rights or legitimate interests
The Complainant submits that the Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for BITZER. Further it sells other air compressor products under other brand names on its website.
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 BITZER trademark and registered the disputed domain name to attract business to its website. The Complainant provided print outs to show that the website to which the disputed domain name resolved to was at the time the complaint was filed was used to sell air compressors. As such, the Complainant alleged registration and use of the disputed domain name was in bad faith. B. Respondent
The Respondent did not respond to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the Registration Agreement is in English. 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 Chinese on the grounds it was clear the Respondent understood Chinese as it was a company based in China and had communicated with the Complainant in Chinese.
The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in Chinese;
2) accept a Response in either English or Chinese;
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 who is familiar with Chinese and English.
This is a case were there are no clear factors favouring using one language or other as the language of the proceeding. The Complainant is an international company that clearly understands English. It has quite fairly requested the language of proceeding be in Chinese. The Registration Agreement is in English and the website under the disputed domain name is in English. There can, however, also be no doubt the Respondent understands Chinese as well as English.
These factors lead the Panel to determine to follow the Center's preliminary determination and accept the Complaint in Chinese. However, as the Registration Agreement 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 BITZER, the descriptive term "compressor" and the generic Top-Level Domain ("gTLD") ".com". The Panel finds that the disputed domain name is confusingly similar to the registered trademark BITZER. 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 provided evidence that the Respondent previously used the disputed domain name in connection with a website selling both the Complainant's and competitors' air-compressor products. 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 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.
This case falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
"by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
The evidence filed by the Complainant shows that the website under the disputed domain name was clearly being used to sell products similar to the Complainant's.
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: November 4, 2015
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