The Complainant is OSRAM GmbH of Munich, Germany, represented by Hofstetter, Schurack & Partner, Germany.
The Respondent is ZheEn Xiao, Xiao ZheEn of GuangZhou, Guangdong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Shanghai Meicheng Technology Information Development Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2016. On July 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 11, 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 July 12, 2016, the Center transmitted by email in both English and Chinese to the Parties a request for comment on the language of proceeding. The Complainant submitted by email a request for English to be the language of proceeding on July 14, 2016. The Respondent did not comment on the language of proceeding by the specific 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 both English and Chinese, and the proceedings commenced on July 25, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 15, 2016.
The Center appointed Douglas Clark as the sole panelist in this matter on August 24, 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
The Complainant is the operating subsidiary of a multinational lighting manufacturer OSRAM Licht group based in Munich, Germany.
The Complainant owns an International Trademark Registration for OSRAM, designating several countries including China, registered under the number 676932 on April 16, 1997.
The Complainant is also the owner of more than 640 OSRAM domain names, covering both generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”).
The Respondent is an individual based in Guangdong, China.
The website under the disputed domain name resolves to a page that purports to advertise one of the Complainant’s vehicle light product lines: “LEDriving FOG”. 5. Parties’ Contentions A. Complainant
Identical or Confusingly Similar
The Complainant contends that the disputed domain name and the trademark OSRAM are identical or confusingly similar.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for OSRAM. It, therefore, has no rights or legitimate interests in the disputed domain name.
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 OSRAM trademark given its worldwide reputation. The website also falsely promotes one of the Complainant’s vehicle light product lines: “LEDriving FOG”. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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. 6.1. Language of the Proceeding
The language of the Registration Agreement is in Chinese.
The Complainant requests that the language of the proceeding be English on the grounds that the Complainant does not understand or speak Chinese. The obligation to translate all case relevant documents would be an unfair disadvantage to the Complainant. It would also be too cost intensive and the proceeding would be unnecessarily delayed.
The Respondent did not respond to this request, or to the Center’s invitation for the Respondent to comment in this regard.
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 Center made a preliminary determination to:
(1) accept the Complaint as filed in English;
(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 the Panel.
The Respondent did not respond to the Center’s preliminary determination. The Panel decided in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a Respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expense. This factor leads the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Substantive Issues A. Identical or Confusingly Similar
The disputed domain name , other than the gTLD “.link”, is identical to the Complainant’s trademark OSRAM, registered in various countries and jurisdictions.
The first element of 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 is the owner of over 100 international OSRAM trademarks. The Respondent has not registered the disputed domain name in connection with a bona fide intent and has no business or any relationships (licensor, distributor) with the Complainant. The disputed domain name points to a website that falsely advertises one of the Complainant’s vehicle light product lines in Chinese (Product line: “LEDriving FOG”).
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy sets out ways in which a Respondent may establish they have rights and legitimate interests. These are:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a Response by the Respondent and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark or register a domain name that is identical to the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith.
The website under the disputed domain name which appears to be advertising the Complainant’s products makes it clear the Respondent knew of the Complainant at the time it registered the domain name. The website appears to be falsely promoting one of the Complainant’s vehicle light product lines: “LEDriving FOG” in Chinese. The Respondent’s promotion of the Complainant’s lighting products on the website under the disputed domain name may have the effect of leading Internet users to wrongly believe that the Respondent’s website is affiliated with or operated by the Complainant, which is not the case. This shows the Respondent’s bad faith registration and use of the disputed domain name.
The third element of 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: September 11, 2016
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