The Complainant is Koninklijke KPN N.V. of Hague, the Netherlands, represented internally.
The Respondent is Wang Jian Hua of Nanjing, Jiangsu, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2015. On January 4, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 5, 2016, 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 January 7, 2016, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On January 7 and 8, 2016, the Complainant submitted its request that English be the language of the proceeding. On January 8, 2016, the Respondent submitted its request that Chinese be the language of the proceeding.
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 January 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 4, 2016. The Response was filed with the Center on February 3, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 17, 2016. 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 the Netherlands and a provider of telecommunications services in the Netherlands since 1913. The Complainant is the leading telecommunications service provider in the Netherlands. The Complainant owns several registrations in Europe for its word and figurative trade mark KPN (the “Trade Mark”), the earliest dating from 1993. The Trade Mark is a well-known trade mark in the Netherlands. The Complainant has also registered the Trade Mark with the Trademark Clearinghouse. B. Respondent
The Respondent is an individual apparently resident in China. C. The Disputed Domain Name
The disputed domain name was registered on July 22, 2015. D. Use of the Disputed Domain Name
The disputed domain name has not been used. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent contends that the disputed domain name is not identical or confusingly similar to the Trade Mark, the Respondent has rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has not been registered and used in bad faith. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the Registration Agreement for the disputed domain name 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 Agreement.
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 as the Complainant does not understand Chinese, and the Complainant has corresponded with the Respondent in English.
The Respondent has indicated that it opposes English as the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, 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 that the English language email negotiations between the parties provide sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should the language of the proceeding be English. The Panel notes further the Complainant has filed both English and Chinese language versions of the Complaint.
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 in both English and Chinese;
2. It will accept the filing of the Response in Chinese; and
3. It will render this 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 Mark acquired through use and registration.
The disputed domain name is identical to the Trade Mark.
The Respondent asserts the Trade Mark is not well-known in China and there is no evidence of the Complainant’s use of the Trade Mark in China. This is not the relevant test under the UDRP, which simply requires the Complainant to establish rights in the relevant trade mark irrespective of the jurisdiction in which the mark is registered and/or used.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. 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 name, 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 name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. The Respondent has made no use of the disputed domain name and has offered to sell the disputed domain name to the Complainant for USD 10,000.
The Respondent complains that the Complainant chose not to register the disputed domain name during the Sunrise Period and asserts that the disputed domain name has been legally registered. None of these matters constitutes evidence of the Respondent having any rights or legitimate interests in the disputed domain name.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
In light of the offer for sale of the disputed domain name to the Complainant for USD10,000, the Panel finds the requisite element of bad faith has been satisfied under paragraph 4(b)(i) of the Policy.
The Respondent claims he or she is just an Internet enthusiast, complains that he or she has not had the opportunity to use the disputed domain name, and asserts that it was the Complainant who commenced negotiations regarding the sale of the disputed domain name and made the first offer on price. None of these factors is able to obviate the clear evidence of bad faith herein under paragraph 4(b)(i) of the Policy. The Panel notes further that the Respondent must have known of the Complainant’s rights in the Trade Mark at the time of registration of the disputed domain name, having been notified of such rights via the Trademarks Clearinghouse.
For the foregoing reasons, the Panel has no hesitation in concluding that the disputed domain name has been registered and is 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 name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: March 7, 2016
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