The Complainant is AXA SA of Paris, France, represented by Selarl Candé Blanchard Ducamp Avocats, France.
The Respondent is Ran Jian of Chongqing, Sichuan, 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 in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 2, 2017. On February 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 3, 2017, 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 February 13, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On February 13, 2017, the Complainant confirmed its 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 of the Complaint in both Chinese and English, and the proceedings commenced on February 23, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 15, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 16, 2017.
The Center appointed Douglas Clark as the sole panelist in this matter on March 23, 2017. 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 a French corporation which is the holding company of the AXA Group which provides insurance and financial services. The Complainant has numerous registrations around the world for the trademark AXA, including in China, for example, Chinese trademark registration no. 774571, registered on December 28, 1994.
The disputed domain name was registered on August 12, 2016. The website to which the disputed domain name until recently resolved was a page featuring pornographic content and pictures of Asian women in various stages of undress. Other than a copyright notice in English no other written content in any language was on the site. There were links on the site to other third-party sites with pornographic content. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is made up of the registered trademark AXA, the numeral 3 and the Roman letter "k" to which the generic Top-Level Domain ("gTLD") ".loan" has been added. It is therefore confusingly similar to the Complainant's registered trademark AXA.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name and has never been licensed or authorized by the Complainant to use the trademark AXA.
The Complainant submits that the Respondent must have known of the Complainant given the fame of the Complainant. Further, the use the Respondent has made on its website providing pornographic content together with pay-per-click links shows the Respondent's is using the disputed domain name for commercial gain. B. Respondent
The Respondent did not respond to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of Proceedings
The language of the Registration Agreement is in Chinese. 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 Complainant requested the language of the proceeding to be English on the grounds that the IP location of the domain name was in the United States of America, where English is the official language; the server was in Hong Kong, China, where English is an official language; there was some English written on the website under the disputed domain name, namely, the copyright notice; and the registrant appears to have registered other domain names with registrars who only use English. From this, the Complainant submitted the Respondent should understand English.
The Respondent did not respond to this request.
The final determination of the language of the proceeding lies with this Panel.
The Respondent has not responded to the Center's preliminary determination (which was sent in Chinese and English). 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."
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. There is some evidence the Respondent should have an understanding of English. Translating the Complaint would cause unnecessary delay in this matter.
These factors lead 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 Decision A. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark AXA, the numeral "3", the Roman letter "k" and the gTLD ".loan". The first part of the disputed domain name is identical to the Complainant's registered trademark AXA, the use of the numeral "3" and the letter "k" does not detract from any confusion created. In fact, the use of the gTLD ".loan" suggests a link to financial services. The Panel finds the disputed domain name is confusingly similar to the registered trademark AXA.
The first part 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 has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. The use of the disputed domain name to provide pornographic content cannot be considered to be in good faith.
The second part of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
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 trademark AXA is well known. The content of the site under the disputed domain name has nothing to do with loan services. The links to third-party sites suggest the Respondent is making a commercial gain from the site. Further, the display of pornographic materials tarnishes the AXA trademark. This has been found in other UDRP cases to be registration and use in bad faith (see WIPO Overview 2.0, paragraph 3.11). 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: April 8, 2017
Full & Egal Universal Law Academy