The Complainant is Volkswagen AG of Wolfsburg, Germany, represented by Drzewiecki, Tomaszek & Wspólnicy Spólka Komandytowa, Poland.
The Respondent is 龚青梅 of Chongqing, China. 2. The Domain Name and Registrar
The disputed domain name () is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2016. On September 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 26, 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 September 29, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On September 30, 2016, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on 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 in both Chinese and English of the Complaint, and the proceeding commenced on October 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 27, 2016.
The Center appointed Matthew Kennedy as the sole panelist in this matter on November 3, 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 one of the world’s leading manufacturers of automobiles and a leader in the passenger car market in China. Eighteen different models of Volkswagen automobiles are locally manufactured in China and marketed under the trademark 大众汽车, which is a Chinese translation of VOLKSWAGEN. Annual sales of these automobiles in China have exceeded two million units in each year since 2013. The Complainant is the owner of various trademark registrations, including International trademark registration number 840268 for 大众汽车, registered on May 19, 2004, designating China, and specifying automobiles, among other goods.
The Respondent is an individual in China and the registrant of the disputed domain name. The disputed domain name was created on August 18, 2015 and does not resolve to any active website. It was not possible to deliver the Written Notice to the Respondent by courier or fax because the Respondent’s contact information in the Registrar’s WhoIs database was incomplete or incorrect. 5. Parties’ Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant’s大众汽车 trademark. The disputed domain name incorporates that trademark in its entirety and adds only the Top-Level Domain (“TLD”) suffix “.公司”.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register any domain name incorporating any of those trademarks. The Respondent is in no way connected with the Complainant or any of its subsidiaries. The Respondent is not commonly known by the disputed domain name.
The disputed domain name was registered and is being used in bad faith. The Respondent never replied to the Complainant’s cease-and-desist letters. The VOLKSWAGEN trademark is famous all over the world and, from the Chinese-speaking public’s point of view, translates into the reputation of the 大众汽车 trademark. The Respondent must have been aware of the Complainant’s trademark when she registered the disputed domain name. The Respondent only passively holds the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
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 Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that it does not understand Chinese, that translation of the Complaint into Chinese would incur substantial expenses and unduly delay the proceeding, and that the Respondent did not indicate that it could not understand the cease-and-desist letters that the Complainant sent in English.
Paragraphs 10(b) and (c) of the Rules require the Panel to ensure that the parties are treated with equality, that each party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have found that the choice of the language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
The Panel observes that the Complaint in this proceeding was filed in English. The Respondent has not expressed any interest in responding to the Complaint or participating in this proceeding in any other way. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. 6.2. Analysis and Findings
The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant. Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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. A. Identical or Confusingly Similar
Based on the evidence submitted, the Panel finds that the Complainant has rights in the 大众汽车trademark.
The disputed domain name incorporates the Complainant’s trademark in its entirety without any additional element besides the TLD suffix. The TLD suffix is “.公司” which can be translated as “company”. A TLD suffix is usually disregarded under the confusing similarity test because it is a technical requirement of registration. See Lego Juris A/S v. Chen Yong,WIPO Case No. D2009-1611; Dr. Ing. H.c. F. Porsche AG v. zhanglei,WIPO Case No. D2014-0080. Consequently, the Complainant’s 大众汽车trademark is the dominant and only distinctive element of the disputed domain name.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(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 trademark 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 trademark or service mark at issue.
The Panel has already found that the disputed domain name is confusingly similar to the Complainant’s 大众汽车trademark. The Complainant submits that it has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register any domain name incorporating any of those trademarks.
The disputed domain name does not resolve to any active website. That is not a use of the disputed domain name in connection with an offering of goods or services, nor evidence of some legitimate noncommercial or fair use, as envisaged by the first and third circumstances of paragraph 4(c) of the Policy. Further, the Respondent’s name is “龚青梅” not “大众汽车”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.
Based on the above, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that case because she did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith but these circumstances are not exhaustive.
With respect to registration, the Panel observes that the Respondent registered a domain name that is identical to the Complainant’s 大众汽车trademark except for the addition of a TLD suffix, which is a technical requirement of registration. The disputed domain name registration postdates the Complainant’s trademark registrations by several years, notably in China, where the Respondent is located. The Complainant’s 大众汽车trademark is widely known as a leading brand of automobile in China and has no other meaning. The evidence indicates that the Respondent was not authorized by the Complainant to register the disputed domain name. In view of these circumstances, the Panel finds that the Respondent’s choice to register a domain name confusingly similar to the Complainant’s trademark was in bad faith.
With respect to use, the Respondent makes only passive use of the disputed domain name but this does not preclude a finding of use in bad faith (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). In the present dispute, the Complainant has a strong reputation in its 大众汽车trademark which is widely known as a leading brand of automobile in China, where the Respondent is located. The disputed domain name is identical to that trademark except for the addition of a TLD suffix. The Respondent has provided no explanation of any actual or potential good faith use of the disputed domain name. These circumstances are evidence that the disputed domain name is being used in bad faith. Further, it was not possible to deliver the Written Notice by courier or fax because the Respondent’s contact information in the Registrar’s WhoIs database is incomplete or incorrect which may also be evidence of bad faith.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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.
Matthew Kennedy
Sole Panelist
Date: November 6, 2016
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