The Complainant is OSRAM GmbH of Munich, Germany, represented by Hofstetter, Schurack & Partner, Germany.
The Respondent is Kang Xiaoping of Nan Jing, Jiang Su, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Beijing Innovative Linkage Technology Ltd. dba (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 15, 2016. On July 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 25, 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 25, 2016, the Center transmitted by email to the Parties a request in Chinese and English for comment on the language of the proceeding. The Complainant submitted a request for English to be the language of the proceeding by email on August 1, 2016. The Respondent did not comment on the language of the 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 August 4, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 24, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 25, 2016.
The Center appointed Douglas Clark as the sole panelist in this matter on August 30, 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.
The Panel noted that due to an administrative oversight, it appears that the document entitled “Notification of Complaint and Commencement of Administrative Proceeding” and “Written Notice”, and the Complaint (including annexes) were not notified to the WhoIs technical contact details for the Respondent. On September 19, 2016, the Panel issued Procedural Order No. 1, notifying the Respondent of the document entitled “Notification of Complaint and Commencement of Administrative Proceeding” and “Written Notice”, and the Complaint (including annexes), and allowing the Respondent a period of ten days to indicate whether it wished to submit a response. As the Respondent did not respond to the Panel’s Procedural Order No. 1, the Panel has proceeded to render its decision. 4. Factual Background
The Complainant is the operating subsidiary of a multinational lighting manufacturer OSRAM Light 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.
The Respondent is an individual based in Nan Jing, China.
The disputed domain name was registered on April 2, 2016, and does not resolve to any active webpage. 5. Parties’ Contentions A. Complainant
Identical or confusingly similar
The Complainant contends that the disputed domain name and the trademark OSRAM are confusingly similar. The disputed domain name contains OSRAM in its entirety as the distinctive part of the disputed domain name. The additional English word “lighting” refers to the main products of the Complainant’s business; such addition increases the confusing similarity between the disputed domain name and the Complainant’s trademark.
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 and the Respondent acquired the disputed domain name to disrupt the business of the Complainant. 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 use in bad faith. 6.1. Language of the Proceedings
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.
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 proceedings lies with the Panel.
The Respondent did not respond to the Center’s preliminary determination. This 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 “.net”, is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s OSRAM mark in full with the addition of a descriptive term. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark.
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 internationally well known and owns over 100 OSRAM trademarks in several countries including China. The Respondent has no business or any kind of relationships (licensor, distributor) with the Complainant.
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, 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.
Based on the evidence, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith. The Respondent clearly knew of the Complainant when it registered the disputed domain name, as it comprises of not only the Complainant’s mark but also a wording that describes the nature of the Complainant’s products, which serves as strong evidence of the Respondent’s knowledge.
While the disputed domain name has not yet been used, this does not prevent a finding of bad faith. Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain in bad faith. (See paragraph 3.2 of the WIPO Overivew 2.0.)
The third part 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 30, 2016
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