Complainant is AREVA Société Anonyme à Directoire et Conseil de Surveillance of Courbevoie, France, represented by CSC Digital Brand Services AB, Sweden.
Respondent is Zi Qian Xu / Xu Zi Qian of Quanzhou, Fujian Province, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the "Registrar"). 3. Procedural History
Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on October 27, 2016. On October 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 1, 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.
On November 1, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On November 3, 2016, Complainant filed an amended Complaint to include a request for English to be the language of the proceeding. Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amended 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 in both Chinese and English of the Complaint, and the proceedings commenced on November 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 27, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 28, 2016.
The Center appointed Yijun Tian as the sole panelist in this matter on December 2, 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
Complainant, AREVA Société Anonyme à Directoire et Conseil de Surveillance, is a company incorporated in Courbevoie, France.
Found in 2001, Complainant is a French multinational group specializing in nuclear power and renewable energy. In 2015 Complainant's revenue was EUR 8.336 billion with a consolidated net income of EUR 2.038 billion. It currently employs approximately 44,000 people around the world, and it has commercial and industrial operations in 41 countries spanning Europe, North America, South America, Africa and the Middle East as well as the Asia-Pacific region.
Complainant has rights in the AREVA marks. Complainant is the owner of several AREVA trademarks worldwide, including an international trademark registered since November 28, 2001 (international registration number 783282), covering China (Annex 3 to the Complaint). Complainant also owns and operates domain names which contain AREVA mark in its entirety, such as (since April 13, 1998) and (since March 17, 2003) (Annex 6 to the Complaint). B. Respondent
Respondent is Zi Qian Xu / Xu Zi Qian of Quanzhou, Fujian Province, China. The disputed domain name was registered on June 22, 2016. Respondent has offered the disputed domain name for sale via the website resolved by the disputed domain name. 5. Parties' Contentions A. Complainant
Complainant contends that the disputed domain name is identical to Complainant's international trademarks. The disputed domain name contains Complainant's AREVA trademark in its entirety.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it. B. Respondent
Respondent did not reply to 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 specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
a) Complainant is unable to communicate in Chinese and translation of the Complaint would unfairly disadvantage and burden Complainant and delay the proceeding and adjudication of this matter;
b) Such additional delay, considering that the disputed domain name is or has been actively listed for sale, poses continuing risk to Complainant;
c) The disputed domain name is comprised of Latin characters;
d) The website resolved by the disputed domain name features various phrases in English including "Welcome to " and "the domain is for sale!" (see Annex 5 to the Complaint);
e) The term "areva", which is the dominant portion of the disputed domain name, does not carry any specific meaning in the Chinese language;
f) Complainant previously sent a cease-and-desist letter to Respondent, and Respondent responded substantially to the Complainant's communications despite their submission in the English langauge.
g) It would unduly burden Complainant to have to arrange and pay for translation where Respondent has demonstrated behavior that disrupts Complainant's business and has already required Complainant to devote significant time and resources to addressing this instance of abuse.
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) 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 other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the Panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") further states:
"in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement." (WIPO Overview 2.0, paragraph 4.3; see also L'Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585.)
The Panel has taken into consideration the facts that Complainant is a company from France, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters and the website at the disputed domain name includes some English words (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name is registered in Latin characters and an English word abbreviation ("ltd" is the abbreviation of "Limited company"), rather than Chinese script; (b) the website at the disputed domain name is offering to sell the disputed domain name. The content of the website is available both in Chinese and in English (it contains the English phrases, such as "Welcome to " and "the domain is for sale"); (c) the website resolved by the disputed domain name appears to have been directed to users worldwide, particularly Chinese and English speakers; (d) the Center has notified Respondent of the proceeding in both Chinese and English; (e) the Center informed Respondent that it would accept a Response in either English or Chinese; (f) Respondent engaged in pre-Complaint communications with Complainant which used the English language.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Discussion and Findings
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the AREVA marks acquired through registration. The AREVA marks have been registered internationally since 2001.
The disputed domain name comprises the AREVA mark in its entirety. The disputed domain name only differs from Complainant's trademarks by the generic Top-Level Domain ("gTLD") suffix ".ltd" to the AREVA marks. This does not eliminate the identity or at least the confusing similarity between Complainant's registered trademarks and the disputed domain name. WIPO Overview 2.0 further states:
"The applicable top-level suffix in the domain name (e.g., ".com") would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark". (paragraph 1.2).
Thus, the Panel finds that the gTLD suffix ".ltd" is not sufficient to negate the confusing similarity between the disputed domain name and the AREVA marks.
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) 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 Complainant's trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant's contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).
According to the Complaint, Complainant, founded in 2001, is a French multinational group specializing in nuclear power and renewable energy. In 2015 Complainant's revenue was EUR 8.336 billion with a consolidated net income of EUR 2.038 billion. It currently employs approximately 44,000 people around the world, and it has commercial and industrial operations in 41 countries. Complainant has rights in the AREVA marks since 2001 which long precede Respondent's registration of the disputed domain name (2016).
Moreover, Respondent has no affiliation with Complainant or authorization to use Complainant's marks. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. By contrast, Respondent is using the website resolved by the disputed domain name to offer to sell the disputed domain name. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term "areva" in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the AREVA marks or to apply for or use any domain name incorporating the AREVA marks.
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name on June 22, 2016, long after the AREVA marks became internationally knowable. The disputed domain name is identical or confusingly similar to Complainant's AREVA marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, Respondent offers to sell the disputed domain name via the website resolved by disputed domain name (as introduced above).
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraphs 4(b)(i) and (iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith. a) Registered in Bad Faith
The Panel finds that Complainant has a widespread reputation in the AREVA marks with regard to its products or services. Complainant has registered its AREVA marks since 2001. Based on the information provided in the Complaint, Complainant, found in 2001, is a French multinational group specializing in nuclear power and renewable energy. It currently employs approximately 44,000 people around the world, and it has commercial and industrial operations in 41 countries spanning Europe, North America, South America, Africa and the Middle East as well as the Asia-Pacific region. Moreover, in China specifically, where Respondent is located, Complainant has maintained a presence since the mid-1980's with the construction of the Daya Bay and Ling'Ao nuclear power plants. Complainant has approximately 850 employees in China with sales offices and production sites in 12 locations including Beijing, Shanghai and the provinces of Jiangsu, Sichuan, and Guangdong. AREVA Asia is headquartered in Beijing, China (Annex 9 to the Complaint). It is not conceivable that Respondent would not have had actual notice, of Complainant's trademark rights at the time of the registration of the disputed domain name (in 2016).
Moreover, Respondent has chosen not to respond to Complainant's allegations. Respondent offered to sell the disputed domain name via the website resolved by the disputed domain name, as well as in pre-Complaint communications. According to the panel's decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, "the failure of the Respondent to respond to the Complaint further supports an inference of bad faith" (see also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787).
Thus, the Panel concludes that the disputed domain name was registered in bad faith. b) Used in Bad Faith
Complainant also has adduced evidence to prove that by using the confusingly similar disputed domain name, Respondent has "intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites or other on-line location".
To establish an "intention for commercial gain" for the purpose of this Policy, evidence is required to indicate that it is "more likely than not" that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Given the widespread reputation of the AREVA marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website or other on-line location to which the disputed domain name resolves. In other words, Respondent has through the use of a confusingly similar disputed domain name created a likelihood of confusion with the AREVA marks. Moreover, Respondent did not respond to the Complaint. In its pre-Complaint communication, Respondent indicated that it chose the disputed domain name because it was an acronym corresponding to "a" for the initial of Chinese pinyin "ai" or "an" or "ang", "re" for "hot" in Chinese and "va" because it is phonetically similar to "哇" (in northern China, it reads as "wa"), which, under the circumstances, is wholly unconvincing as an explanation of Respondent's conduct. Instead, as mentioned above, Respondent offered to sell the disputed domain name in its communications and through the website resolved by the dispute domain name. The Panel therefore concludes that the disputed domain name is being used by Respondent in bad faith.
In summary, Respondent, by choosing to register and use a domain name, which is confusingly similar to Complainant's well-known trademarks, intended to ride on the goodwill of Complainant's trademarks in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website or other on-line location to which the disputed domain name resolves and the offer to sell the disputed domain name are indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision
For all 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 Complainant.
Yijun Tian
Sole Panelist
Dated: December 9, 2016
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