The Complainant is Visiomed Group of Paris, France, represented by Coblence & Associés, France.
The Respondent is Chu Huan Liu, Liu Chu Huan of Yangzhou, Jiangsu, 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 February 27, 2017. On February 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 28, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to the Center’s deficiency notification, the Complainant filed an amendment to the Complaint on March 3, 2017. On March 2, 2017, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on March 2, 2017. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 English and Chinese of the Complaint, and the proceedings commenced on March 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 29, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on April 6, 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 A. Complainant
The Complainant is a company incorporated in France and a manufacturer of medical products. The Complainant is the owner of numerous registrations for the word and device trade mark VISIOMED (the “Trade Mark”), including European Union registration No. 5741426, registered on December 13, 2007; and European Union registration No. 10648491, registered on March 18, 2014. The Complainant has used the Trade Mark since 1999, and is present in and uses the Trade Mark in 35 countries worldwide. B. Respondent
The Respondent is located in Jiangsu Province in China. C. The Disputed Domain Name
The disputed domain name was registered on October 18, 2016. D. The Website at the Disputed Domain Name
The disputed domain name is resolved to a website (the “Website”) which promotes the business and products of a company incorporated in Jiangsu Province in China, Jiangsu Yongle Medical Tech. Co., Ltd, a manufacturer of medical products, namely, laryngoscopes and manual resuscitators. 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 reply 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. However, 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 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.
The Panel notes that the Website is available in two languages, Chinese and English. The English language content of the Website demonstrates that the Respondent is conversant and proficient in the English language. In view of the above, the Panel considers that the Respondent will not be prejudiced, should English be adopted as the language of the proceeding.
In all the circumstances, 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 Mark acquired through use and registration.
The disputed domain name comprises a misspelt version of the Trade Mark with the addition of the letter “n”, together with the prefix “ez”.
The Panel considers that the addition of the prefix “ez”, a commonly used abbreviation for the word “easy”, in particular in marketing parlance, does not serve to distinguish the disputed domain name from the Trade Mark in any significant way.
The Panel considers that the addition of the letter “n” in between the letters “visio” and “med” also does not serve to distinguish the disputed domain name from the Trade Mark in any significant way. The Panel concludes that the Respondent has engaged in typosquatting, by adding the letter “n” to the Trade Mark, and adding the non-distinctive prefix “ez” to the Trade Mark.
The Panel notes the effect of the typosquatting, disregarding the prefix “ez”, is to produce the word “vision”. In all the circumstances, however, the Panel does not consider that this is sufficient to distinguish the disputed domain name from the Trade Mark for the purposes of the Policy. The Panel notes from the evidence that neither of the Parties is engaged in the manufacture and sale of products relating to vision or eyesight, and, furthermore, there is no evidence of the Respondent having used (whether on the Website or otherwise) any trade marks comprising the word “vision” or similar wording.
The Panel therefore finds that the disputed domain name is confusing similar to the Trade Mark. 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 Mark. 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 it 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 Website, which makes no reference whatsoever to the “ezvisionmed” comprised in the disputed domain name, and which promotes and sells the medical products of a competitor of the Complainant in the medical products field under the name of “Jiangsu Yongle Medical Tech. Co., Ltd”.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and 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, and therefore finds that the requirements of paragraph 4(a)(ii) are met. C. Registered and Used in Bad Faith
The Complainant fairly concedes that it does not, at present, manufacture and sell laryngoscopes and manual resuscitators. There can be no question, however, that such products are in the same or similar specialised medical products field as those manufactured and promoted worldwide, under the Trade Mark, by the Complainant since 1999 and that it is no coincidence that the Complainant chose a confusingly similar domain name to the Complainant’ mark.
In all the circumstances, the Panel finds that the disputed domain name has been registered and used in bad faith under paragraph 4(b)(iv) of the Policy, in order to intentionally attempt to attract, for commercial gain, Internet users to the Website, by creating a likelihood of confusion with the Complainant’s Trade Mark as to the source, sponsorship, affiliation, or endorsement of the Website or of products or services on the Website.
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: April 20, 2017
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