The Complainant is ALSTOM S.A. of Levallois-Perret, France, represented by Nameshield, France.
The Respondent is Zhouhaotian of Changsha, Hunan, China. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 30, 2015. On September 30, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 8, 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 October 8, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On October 9, 2015, the Complainant submitted its request that English 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 English and Chinese, and the proceeding commenced on October 15, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 4, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 5, 2015.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on November 17, 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 ALSTOM S.A., a French company created in 1928. The Complainant is a global leader in the field of power generation, power transmission, and rail infrastructure. The Complainant submits that it employs a total of 96,000 people, is present in more than 100 different countries, and generated revenues of EUR20.3 billion in 2013. The Complainant has registered the trademark ALSTOM in various jurisdictions (the "ALSTOM marks"). The Complainant provided evidence of its trademarks registrations in Annex 4 to the Complaint. The evidence shows that the Complainant's registrations of the ALSTOM marks began at least as early as 1998. The Complainant further provided evidence of its ownership of several domain names utilizing the ALSTOM marks in Annex 6 to the Complaint.
The Respondent is Zhouhaotian of Changsha, Hunan, China. The Disputed Domain Name was registered on May 12, 2015. The Disputed Domain Name does not resolve to an active website. 5. Parties' Contentions A. Complainant
The Disputed Domain Name is identical or confusingly similar to the Complainant's ALSTOM marks. The Respondent has no rights to or legitimate interests in the Disputed Domain Name. The Respondent registered and is using the Disputed Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Complainant has requested that English be recognized as the language of the proceeding. The language of the registration agreement is Chinese; however, the Disputed Domain Name is registered in ASCII characters using the Roman alphabet. The Complainant asserts that it has no knowledge of Chinese and in order to proceed in Chinese would have to retain specialized translation services at a cost very likely to be higher than the overall cost of this proceeding. Thus, the use of Chinese in this case would impose a burden on the Complainant.
The Respondent has not commented regarding the language of the proceeding. The notification and details regarding this proceeding were provided to the Respondent in English and Chinese, thus, the Respondent's failure to comment is not due to a lack of understanding of the proceeding.
Taking the foregoing into account, along with the Respondent's failure to comment on the language of the proceeding, the Panel concludes that English should be the language of the proceeding.
Where a party fails to present evidence of facts in its control, the panel may draw adverse inferences regarding those facts. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004. Insofar as the Respondent has not responded, it is appropriate to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. Nonetheless, paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the Disputed Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
To prove this element, the Complainant must have trademark rights and the Disputed Domain Name must be identical or confusingly similar to the Complainant's trademark.
As stated above, the Complainant is the registered owner of a number of ALSTOM marks in a number of jurisdictions. The record shows that the Complainant owned rights in the ALSTOM marks before the Disputed Domain Name registration. Further, the Complainant submits that the word "Alstom" is only known in relation to the Complainant and that it has no meaning in any language. Google and Baidu searches on the word "Alstom" all display results related to the Complainant. The Complainant provided evidence of these results in Annex 7 to the Complaint. Accordingly, the Panel finds that the ALSTOM marks are distinctive and well-known by the public as indicating the Complainant's goods and services, and that the Complainant has rights in the ALSTOM marks. Previous UDRP Panels have made similar holdings. See Alstom v. Yang Yi,WIPO Case No. D2014-2107; Alstom v. Andrey Suslov,WIPO Case No. D2013-2172; Alstom v. Wayne Weeks,WIPO Case No. D2013-2029; Alstom v. Pankaj Tomar,WIPO Case No. D2011-2031.
The Complainant asserts that the Disputed Domain Name is identical or confusingly similar to its ALSTOM marks. The Panel agrees. The Disputed Domain Name incorporates the ALSTOM mark in its entirety. It is well established that a domain name is confusingly similar to a mark "when the domain name includes the trademark, or a confusingly similar approximation." Nicole Kidman v. John Zuccarini, b/b/a Cupcake Party, WIPO Case No. D2000-1415; Six Continent Hotels, Inc. v. The Omnicorp,WIPO Case No. D2005-1249; Research in Motion Limited. v. One Star Global LLC,WIPO Case No. D2009-0227 ("In most cases where a domain name incorporates the entirety of a trademark, then the domain name will for the purposes of the Policy be confusingly similar to that mark."); Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525.
The only difference between the Complainant's ALSTOM marks and the Disputed Domain Name is the use of the term ".pub" as the Top-Level Domain. In determining whether a domain name is identical or confusingly similar to a complainant's mark, UDRP WIPO panels have typically disregarded the generic Top-Level Domain ("gTLD") or country code Top-Level Domain ("ccTLD"). Yahoo! Inc. v. Whois Agent, Whois Privacy Protection Service, Inc. / Moataz Mohsen, YAHO,WIPO Case No. DME2014-0003. Thus, the Panel finds that the use of the term ".pub" in the Disputed Domain Name does not serve to distinguish the Disputed Domain Name from the Complainant's ALSTOM marks. Thus, it is likely that consumers would be confused by the use of the ALSTOM marks in the Disputed Domain Name.
In light of the foregoing, the Panel finds that the Disputed Domain Name is identical or confusingly similar to the Complainant's registered marks and that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
The Panel finds that there is no evidence in the record to indicate that the Respondent has any rights or legitimate interests in the term "Alstom." A complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See Croatia Airlines d. d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d. d. v. WACHEM do.o.,WIPO Case No. D2004-0110. The Panel finds that the Complainant has successfully presented a prima facie case which the Respondent has not rebutted. The Respondent filed no response. Without a response, there is nothing in the case file that indicates that the Respondent has a right or legitimate interest in the Disputed Domain Name. Further, as discussed below, the Panel also finds that the Respondent is not engaged in a bona fide offering of goods or services. There is also no evidence in the record that the Respondent's use of the Disputed Domain Name is a legitimate noncommercial or fair use, or that the Respondent is commonly known by the Disputed Domain Name.
The Panel finds that the requirements of paragraph 4(a)(ii) of the Policy have been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states nonexclusive circumstances which, if found, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location.
As discussed above, the Complainant's ALSTOM marks are distinctive and well known. Thus, the Respondent was aware of or should have known of the Complainant's rights in the ALSTOM marks when registering the Disputed Domain Name. Further, the record shows that the Complainant owned trademark rights in the ALSTOM marks that predate the creation of the Disputed Domain Name and that the Disputed Domain Name contains the Complainant's mark in its entirety. Further, there is no evidence that the Respondent has any rights in the term "Alstom." See General Electric Company, GE Osmonics Inc. v. Optima di Federico Papi,WIPO Case No. D2007-0645. Further, where the mark is well-known and famous, a trader would not legitimately choose it, "unless seeking to create an impression of an association" with the mark's owner. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The Respondent has not offered any argument to show this inclusion is not non-distinctive or generic, and, in the absence of a credible explanation, the most likely explanation is that it was chosen with the Complainant's mark in mind. Associazione Radio Maria v. Mary Martinez / Domains by Proxy, Inc., WIPO Case No. D2010-2181. The Panel finds that the Respondent registered the Disputed Domain Name in bad faith.
The Complainant submits that the Respondent is using the Disputed Domain Name in bad faith. Although the Disputed Domain Name does not resolve to an active website, such passive holding can be considered as a use in bad faith within the meaning of paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574. The Respondent's bad faith is further evidenced by the fact that the Respondent chose a domain name that contains the Complainant's ALSTOM mark in its entirety.
In light of the foregoing, the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith. Thus, the Panel finds that paragraph 4(a)(iii) of the Policy has been 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.
Kimberley Chen Nobles
Sole Panelist
Date: December 1, 2015
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