The Complainant is N.V. Nutricia of Zoetermeer, Netherlands, represented by Dreyfus & associés, France.
The Respondent is yin Jalonyin, Jalonyin of Shijiazhuang, Hebei, 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 May 22, 2017. On May 22, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 23, 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 May 31, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On May 31, 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, and the proceedings commenced on June 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2017.
The Center appointed Francine Tan as the sole panelist in this matter on July 4, 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 was established in the Netherlands around the turn of the 20th century and specializes in infant and medical nutrition, partnering with pediatricians and experts in the field to conduct research and develop solutions for children who experience difficulties with conventional foods, or who have growth deficiencies. The Complainant is present in many countries worldwide (including in China where the Respondent is located).
In 1981 the Complainant acquired a British company named “Cow & Gate” which specialized in dairy products. The Complainant expanded its scope of business into milk bottling and distribution, and baby food production. The COW & GATE brand has existed since 1771. The production of powdered milk under the COW & GATE brand started in 1990. Over the years, various products including milk formulations bearing the COW & GATE brand were developed.
The COW & GATE trade mark is asserted by the Complainant to be a worldwide known trade mark. The Complainant COW & GATE brand of milk was one of the top British brands of milk in China especially in 2008 following an outbreak of toxic chemicals in infant milk in China. The products under the COW & GATE trade mark are also available on Chinese online sales platform.
The Complainant is the registered proprietor of the trade mark COW & GATE in, inter alia, the European Union and China, for example, European Union trade mark number 007198617, registered on August 6, 2010 and Chinese trademark numbers 10092913 and 10092914, both registered on December 14, 2012 . It also by itself or via its affiliates owns domain name registrations such as (registered on February 3, 1998) and (registered on December 29, 2004).
The disputed domain name was registered on September 26, 2014. The Respondent’s website from which the disputed domain name resolves commercializes COW & GATE products. The Complainant sent a cease-and-desist letter to the Respondent on the basis of its trade mark rights. The Respondent never replied to the Complainant, despite several reminders. 5. Parties’ Contentions A. Complainant
1. The disputed domain name is confusingly similar to the Complainant’s COW & GATE trade mark. The disputed domain name reproduces the COW & GATE trade mark in its entirety. The ampersand (“&”) is a symbol for “and” and the word “baby” corresponds to the Complainant’s field of activity. The hyphen before the word “baby” is not sufficient to distinguish the disputed domain name from the Complainant’s COW & GATE trade mark. The “.com” element in the disputed domain name is not to be taken into consideration since it is well established that the generic Top-Level Domain (“gTLD”) is insufficient to avoid a finding of confusing similarity.
2. The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant and not been authorized by the Complainant to use and register the trade mark COW & GATE, or to seek the registration of a domain name incorporating the said trade mark. The Respondent has no prior rights or legitimate interests in the disputed domain name; the COW & GATE trade mark was registered before the registration of the disputed domain name. The disputed domain name and related website are so similar to the Complainant’s well-known COW & GATE trade mark that the Respondent cannot pretend it was intending to develop a legitimate activity through the disputed domain name. The Respondent has no use of or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Respondent is illegitimately selling the products of the Complainant or possibly imitations thereof (which could be hazardous to babies) by exploiting the Complainant’s fame. The Respondent did not reply to the Complainant’s cease-and-desist letter despite reminders, which suggests that the Respondent has no rights or legitimate interests in the disputed domain name.
3. The disputed domain name was registered and is being used in bad faith. It is not plausible that the Respondent was unaware of the Complainant when it registered the disputed domain name. The Complainant and its trade marks are widely known including in China. The disputed domain name is so obviously connected with the Complainant’s well-known COW & GATE trade mark. A quick trade mark search would have surfaced to the Respondent the existence of the Complainant and its COW & GATE trade mark. A simple search using Google or other search engines would also have surfaced the Complainant’s products. The Respondent’s website is used in relation to the commercialization of the Complainant’s products. The Respondent is clearly trying to benefit from the fame of the Complainant’s COW & GATE trade mark to sell fake or counterfeit products and to profit thereby. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding
The language of the Registration Agreement is Chinese but the Complainant requested that English be adopted as the language of the proceeding as the Complainant is located in the Netherlands and has no knowledge of Chinese. To proceed in Chinese, the Complainant would have to retain the services of a translator, which would involve substantial costs higher than the overall cost of the proceeding. This presents a significant burden on the Complainant. The disputed domain name contains only English words and the Respondent’s website is both in English and Chinese, which strongly suggests that the Respondent has knowledge of English.
The Respondent did not respond on the issue of the language of the proceeding.
Paragraph 11 of the Rules prescribes that in the absence of an agreement between the parties or unless specified otherwise in the Registration Agreement, the language of the proceeding shall be the language of the Registration Agreement. The Panel has the discretion under paragraph 11 of the Rules to determine otherwise, “having regard to the circumstances of the administrative proceeding”. Paragraph 10(b) and (c) of the Rules stipulate that the panel has to ensure that the administrative proceeding takes place “with due expedition” and to ensure fairness to the parties.
Having considered the circumstances of this case, the Panel determines that it would be appropriate for English to be the language of the proceeding. The combination of elements in the disputed domain name, namely a trade mark which is widely known and features English words “cow”, “and”, “gate” and “baby” is an indication that the Respondent is, more likely than not, familiar with the English language. This has not been refuted by the Respondent although it was given the opportunity to. Neither did the Respondent request that Chinese be the language of the proceeding. The Panel moreover notes that the Respondent’s website to which the disputed domain name resolves has portions which are in English.
Requiring the Complainant to have the Complaint and annexes translated into Chinese would run contrary to the policy aim of ensuring that the proceeding take place with due expedition. Instead, it would cause a significant delay in the proceeding. 6.2. Substantive Issues A. Identical or Confusingly Similar
The Complainant has established it has rights in the trade mark COW & GATE. The trade mark is effectively identical in the “cowandgate” portion of the disputed domain name, since the ampersand symbol is a well-known representation for “and”. The said trade mark forms the dominant portion of the disputed domain name and is easily identifiable therein. The word and hyphen “-baby” and the gTLD “.com” are insufficient to remove the confusing similarity with the Complainant’s COW & GATE trade mark. The gTLD is a technical requirement of domain names and the generic term “baby” corresponds to the type of goods produced and sold by the Complainant. There is therefore nothing in the disputed domain name which removes the confusing similarity with the COW & GATE trade mark.
The first element of paragraph 4(a) of the Policy has been satisfied. B. Rights or Legitimate Interests
The Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant did not authorize the Respondent’s use and registration of the disputed domain name and there is no evidence that the Respondent is commonly known by the disputed domain name. The disputed domain name was registered many years after the Complainant registered its COW & GATE trade mark.
The Panel further notes on the Respondent’s website the indication of the “TM” symbol next to the words in English and Chinese, “COW&GATE英国牛栏” (“英国” meaning “England”). There is also a reference on the webpage to the establishment of the Cow & Gate company in the 1700’s, with a specialisation in infant nutrition. These are strong indicators that the Respondent has no rights or legitimate interests in the disputed domain name, as it bears the well-established trade mark of a third party, namely the Complainant, and which the Respondent is well aware of. The Respondent’s failure to respond to the Complainant’s cease-and-desist communications and in this administrative proceeding is consistent with what appears to be the case, namely that the Respondent has simply sought to misuse a domain name containing the Complainant’s trade mark for its own financial gain.
The Panel therefore concludes that the Respondent has no rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy has been satisfied. C. Registered and Used in Bad Faith
As stated in the preceding section, the content on the Respondent’s website and choice of the disputed domain name reveal a significant level of familiarity on the Respondent’s part with the Complainant’s COW & GATE brand of products. The Respondent, by its website, purports to create the impression that its use of the Complainant’s trade mark on its website is legitimate and authorized, that it is permitted to associate its business with the Complainant, or that it is a licensee, by the use of the COW & GATE trade mark in the disputed domain name. Such registration and use is by no means in good faith.
The Respondent did not respond to the cease-and-desist letter from the Complainant. Its silence in this proceeding and conduct as shown by the content and look-and-feel of its website leads to the Panel’s determination that the Respondent is seeking to attract visitors to its website by creating a likelihood of confusion with the Complainant’s COW & GATE mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location or a product or service on the Respondent’s website or location. The circumstances fall within paragraph 4(b)(iv) of the Policy.
The Panel therefore finds that the Complainant has satisfied the third element of 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 transferred to the Complainant.
Francine Tan
Sole Panelist
Date: July 18, 2017
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