Complainant is Volkswagen AG of Wolfsburg, Germany, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
Respondent is Guy Buchet of Brussels, Belgium. 2. The Domain Name And Registrar
The disputed domain name is registered with Register.IT SPA (the "Registrar"). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 13, 2016. On May 13, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 16, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Registrar also confirmed that French was the language of the Registration Agreement for the disputed domain name. The Center sent an email communication to the Parties on May 19, 2016, requesting Complainant to provide either satisfactory evidence of an agreement between Complainant and Respondent to the effect that the proceedings should be in English; or, to submit the Complaint translated into French; or, to submit a request for English to be the language of the administrative proceeding. Respondent was also invited to make submissions in this regard. On May 20, 2016, Complainant filed a request that the case proceed in English. Respondent did not make any submissions in this regard.
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 Respondent of the Complaint in English and in French, and the proceedings commenced on May 25, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 14, 2016. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 15. Due to an administrative oversight regarding notification of the Complaint, the due date for submission of a Response was extended to June 20, 2016. Respondent did not submit any communications to the Center.
The Center appointed Richard Hill as the sole panelist in this matter on June 29, 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
Complainant owns the mark VOLKSWAGEN, including European Union Trade Mark VOLKSWAGEN, registered on May 10, 1999, and uses it to market automobiles around the world. The mark is well known.
The disputed domain name was registered on April 11, 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is not being used in connection with an active website. 5. Parties' Contentions A. Complainant
Complainant states that it was founded in 1937 and is one of the world's leading automobile manufacturers and the largest carmaker in Europe. In 2014, it delivered some 10 million vehicles to customers around the world, corresponding to almost 13 percent of the world passenger car market; in Western Europe, its share is 25 percent. Complainant's trademark VOLKSWAGEN is registered around the world, with registrations dating back to 1998, and it is famous.
According to Complainant, the disputed domain name is confusingly similar to its mark because it integrates the mark in its entirety, adding only the descriptive geographic term "France". The addition of "France" increases the risk of confusion with Complainant's mark since the disputed domain name may be perceived as Complainant's official website for its business in France. Complainant cites previous UDRP decisions to support its position.
Complainant alleges that it has not licensed or otherwise permitted Respondent to use any of its marks, or to register or use any domain name incorporating any of its marks. Respondent is no way connected with Complainant. Respondent is not commonly known by the disputed domain name.
According to Complainant, based on the fame and reputation of its mark, there is no doubt that Respondent purposefully created a domain name containing the mark in order to create the misleading impression of being in some way associated with Complainant, which is not the case. The possible aim is to attract to Respondent's website Internet users looking for information on Complainant and to divert them from Complainant's legitimate website.
Although the disputed domain name is not actively being used, the Complainant says the Panel can find that the third element of the Policy has been violated. In particular because Complainant's mark is famous, Respondent did not reply to cease-and-desist letters, and there is no conceivable legitimate use of the disputed domain name. Complainant cites previous UDRP decisions to support its position.
Furthermore, says Complainant, a reverse WhoIs search on Respondent's email address shows that it is the Registrant of at least 25 other domain names, most of which contain third parties' famous marks, such as those of SAMSUNG, MICHELIN, EXXON, HEWLETT-PACKARD, etc. Such registrations indicate that Respondent engaged in a pattern of conduct of bad faith registration and use of domain names. At least one of the domain names registered by Respondent has been used in a phishing and impersonation attempt directed against one of the trademark holders.
Complainant requests that the disputed domain name be cancelled. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion And Findings
Before considering the three elements of the Policy, the Panel must first consider the matter of the language of the proceeding.
Complainant requests that the language of this administrative proceeding be the English language. Complainant makes this request in light of the French language Registration Agreement. 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 to ensure fairness and justice to both parties. Factors which previous UDRP panels have seen as particularly compelling are: WhoIs information which establishes a respondent in a country which would evince a familiarity with the English language, filing of a trademark registration with an entity which evinces an understanding of the English language, and any evidence (or lack thereof) evincing a respondent's understanding English. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610. Further, the panel may weigh the relative time and expense in requiring the translation of the complaint or response into the language of the registration agreement, which could result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432. Here, Respondent has not replied to cease-and-desist letters and has not replied to the Complaint. Thus it has implicitly accepted that the language of the proceeding can be English. Requiring the translation of the Complaint, and its annexes, into French would result in increased costs and delays for Complainant. Therefore, pursuant to paragraph 11(a) of the Rules, after considering the circumstances of the present case, the Panel decides that the language of the proceeding shall be English. A. Identical or Confusingly Similar
The disputed domain name consists of Complainant's mark plus the descriptive geographic term "France". Thus it is confusingly similar to Complainant's mark. See Volkswagen Aktiengesellschaft v. Muqadas Wattoo,WIPO Case No. D2012-1927; Las Vegas Sands, LLC v. Michael Silver,WIPO Case No. D2006-0979; Playboy Enterprises International, Inc. v. Zaynel Demirtas,WIPO Case No. D2007-0768.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. B. Rights or Legitimate Interests
Respondent has not been licensed or otherwise authorized to use Complainant's mark. There is no evidence in the file to indicate that Respondent is commonly known by the disputed domain name. The disputed domain name is not being used. In the absence of any reply to the Complaint, and in the circumstances of the present case, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name. See Teachers Insurance and Annuity Association of America v. Wreaks Communications Group,WIPO Case No. D2006-0483.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. C. Registered and Used in Bad Faith
Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
The disputed domain name is not being used. According to paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), "[p]anels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant's concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa."
In the present case, Complainant's trademark is well known. It is difficult in the circumstances to envisage any use on the part of Respondent of the disputed domain name that would not interfere with the rights of Complainant within the meaning of the Policy. See Singapore Airlines Ltd. v. European Travel Network, D2000-0641; Starwood Hotels & Resorts Worldwide, Inc., Sheraton Int'l IP, LLC, Westin Hotel Mgmt., L.P. v. Jingjing Tang, D2014-1040.
There has been no response to the Complaint. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name is not being actively used. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. 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 cancelled.
Richard Hill
Sole Panelist
Date: July 1, 2016
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