The Complainant is Groupe Go Sport S.A. of Sassenage, France, represented by AARPI Clairmont Avocats, France.
The Respondent is edfewdew dwdewd, gerer of Shandong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2016. On August 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 12, 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 August 12, 2016, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On August 19, 2016, the Complainant requested English as 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 in both Chinese and English of the Complaint, and the proceeding commenced on August 25, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 15, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 20, 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 France and the owner of several national and international registrations for the trade mark COURIR, the earliest (French) registration No. 1584120 with a filing date of March 26, 1990; and for the trade mark C COURIR, the earliest (French) registration No. 3735484 filed on May 4, 2010 (collectively, the “Trade Mark(s)”). The Complainant has used the Trade Marks since 1980 in relation to the sale of sporting and leisure goods in France, Morocco, Ivory Coast, Reunion Island, Overseas Department of France, Abu Dhabi, Israel, Egypt, Kuwait and Saudi Arabia, both via bricks and mortar retail stores, and online. B. Respondent
The Respondent is apparently an individual located in China. C. The Disputed Domain Name
The disputed domain name was registered on September 24, 2015. D. The Website at the Disputed Domain Name
The disputed domain name is resolved to a French language website which copies the look and feel of the Complainant’s official website, features prominently the COURIR Trade Mark and a close approximation of the C COURIR logo Trade Mark, and offers for sale what the Complainant believes are counterfeit sporting and leisure goods (the “Respondent’s Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not respond to the Complainant’s contentions. 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 and contends it is likely that the Respondent is also proficient in the English language, as the Respondent’s Website is in French language. The Complainant also relies upon the fact the disputed domain name is registered in Latin letters, and the IP address for the disputed domain name is located in the United States of America. The Complainant also contends that translating the Complaint would cause substantial additional burden and delay.
The Respondent, having received the Center’s communication regarding the language of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding. Having received notice of the proceeding in both Chinese and English, the Respondent chose not to file a response.
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.
In the absence of any submissions to the contrary from the Respondent, the Panel finds the evidence relied upon by the Complainant referred to above provides sufficient evidence to suggest the likely possibility that the Respondent is familiar with 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.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be 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 Marks acquired through use and registration.
The disputed domain name contains the Trade Marks in their entirety, together with the prefix “cc” (in the case of the COURIR Trade Mark), and the prefix “c” (in the case of the C COURIR Trade Mark). In the Panel’s view, this is a clear cut case of typosquatting.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Marks. 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 Marks. 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 the Respondent 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. To the contrary, the disputed domain name has been used in respect of the Respondent’s Website, which, without the Complainant’s authorisation, features prominently the COURIR Trade Mark and a close approximation of the C COURIR logo Trade Mark, copies the look and feel of the Complainant’s website, and offers for sale what the Complainant believes are counterfeit sporting and leisure goods, in direct competition with those offered for sale by the Complainant under the Trade Marks.
Even if the goods offered for sale on the Respondent’s Website are not counterfeit goods, the manner in which the disputed domain name has been used cannot possibly give rise to any rights or legitimate interests.
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 failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
In light of the evidence of the Respondent’s use of the Respondent’s Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes 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: October 4, 2016 e
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