Complainant is Carver Korea Co., Ltd. of Seoul, Republic of Korea, represented by Y.P.Lee, Mock & Partners, Republic of Korea.
Respondent is Li Zeng Yu of Hangzhou, Zhejiang, 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
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 20, 2017. On June 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 21, 2017, 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 June 23, 2017, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant requested that English be the language of the proceeding on June 27, 2017. Respondent did not comment on the language of the proceeding by the specified due date.
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 Respondent in English and Chinese of the Complaint, and the proceedings commenced on July 3, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 23, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 24, 2017.
The Center appointed Yijun Tian as the sole panelist in this matter on July 28, 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
Complainant, Carver Korea Co., Ltd., is a company incorporated in Seoul, Republic of Korea. Founded in 1999, Complainant is widely known as a cosmetics manufacturer in Korea, and also in other Asian countries, Europe, and the United States of America (“United States”). Moreover, Complainant has participated in diverse exhibitions while advancing into the Chinese market and selling cosmetic products including the A.H.C. products, such as Guangzhou Expo and Shanghai Expo since 2006 (Annex 4-7 to the Complaint).
Complainant had exclusive rights in more than 80 A.H.C. and A.H.C. related marks (hereinafter “A.H.C.”marks) with respect to the cosmetics and retail store services thereof. Complainant is the exclusive owner of numerous A.H.C. trademarks worldwide, including in Chinese trademark registered since April 21, 2011(the Chinese Trademark registration number 5417025), and Korean trademark registered since November 29, 2005 (the Korean Trademark registration number 40-0640821). Complainant also owns and operates domain names which contain A.H.C. mark in its entirety, such as and . 1 B. Respondent
Respondent is Li Zeng Yu, apparently an individual residing in China. The disputed domain name was registered on May 23, 2016, currently resolving to a website apparently providing products and services under Complainant’s trademark and purporting to indicate that the website is the official website of Complainant. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant’s A.H.C. trademarks. The disputed domain name includes A.H.C. mark in its entirety. The addition of the generic term “cos” at the end of the disputed domain name as well as the generic
Top-Level Domain (“gTLD”) “.wang” is not sufficient to eliminate the confusing similarity.
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:
(1) The disputed domain name is in the English language as it includes the English words “ahc” and “cos”;
(2) Some Annexes of the Complaint are in English and thus, English is the reasonable and appropriate language of this administrative proceeding.
(3) Complainant is not able to communicate in Chinese.
(4) If Complainant were to submit all documents in Chinese or other languages, the arbitration proceeding will be unduly delayed and Complainant would have to incur substantial expenses for translation.
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, Third Edition (“WIPO Overview 3.0”) further states:
“…. panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1.).
The Panel has taken into consideration the facts that Complainant is a company from Korea, 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 terms “ahc” and “cos” (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047).
On the record, Respondent appears to be located in China and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that Respondent is likely to 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 (“ahc” and “cos”), rather than Chinese script; (b) the webpage which was resolved by the disputed domain name contained various phrases in English including “Aesthetic Hydration Cosmetics” “Brand Story” and “A.H.C Brand”;2 (c) the Center has notified Respondent of the proceeding in both Chinese and English, and Respondent has indicated no objection to Complainant’s request that English be the language of the proceeding; (d) the Panel also notes that the Center informed Respondent that it would accept a response in either English or Chinese.
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. Substantive Issues
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) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the A.H.C. marks acquired through registration. The A.H.C. marks have been registered in China (since 2011) and Korea (since 2005). The disputed domain name comprises the prominent park “A.H.C.” mark in its entirety (except the “.”). The disputed domain name only differs from Complainant’s trademarks by the suffix “cos” and the gTLD suffix “.wang” to the A.H.C. marks. This does not eliminate the confusing similarity between Complainant’s registered trademarks and the disputed domain name. By contrast, it supports such confusion because “cos” is a common abbreviation for “cosmetology” or “cosmetics” (Annexes, 10 and 11-1 to 11-4 to the Complaint). The contents of the website resolved by the disputed domain name are in Chinese but contained English words also. The website visitor may believe this is a website which is authorized by Complainant and targeting Chinese consumers. In relation to the gTLD suffix, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states:
“The applicable Top Level Domain (“TLD”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11).
Thus, the Panel finds that disregarding the gTLD suffix “.wang”, the disputed domain name is confusingly similar to the A.H.C. marks.
The Panel therefore holds that Complainant 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 3.0, section 2.1 and cases cited therein).
According to the Complaint, founded in 1999, Complainant is widely known as a cosmetics manufacturer in Korea, and also in other Asian countries, Europe, and United States. Complainant has rights in the A.H.C. marks in China since 2011 and in Korea since 2005, which precede Respondent’s registration of the disputed domain name (2016).
Moreover, Respondent is not an authorized dealer of A.H.C.-branded products or services and moreover claiming its A.H.C. on its website (e.g., at the bottom of the webpage it claimed it’s A.H.C.official website, and the website’s copyright is owned by A.H.C).3 It also has an introduction of A.H.C. Brand on its website,4 as well as has a webpage purporting to show that it is an authorized dealer of Complainant).5 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. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “ahc” in the disputed domain name and in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the A.H.C. marks or to apply for or use any domain name incorporating the A.H.C. mark and Respondent has, through the use of a confusingly similar domain name and its webpage contents, created a likelihood of confusion with the A.H.C. marks. Noting also that apparently the website implies that it is the official website of Complainant and Respondent is an authorized deal of Complainant, potential partners and end users are led to believe that the website at the disputed domain name is either Complainant’s site in China or a site of an official authorized partner of Complainant, which it is not;
(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 May 23, 2016, long after the A.H.C. marks became internationally known. The disputed domain name is confusingly similar to Complainant’s A.H.C. 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 was in actuality advertising, offering and selling purported A.H.C. products or services at the website “www.”.
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 Complainant 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 online 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 paragraph 4(b)(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 been registered and is using the disputed domain name in bad faith.
The Panel finds that Complainant has a widespread reputation in the A.H.C. marks with regard to its products and services. Complainant is widely known as a cosmetics manufacturer in Korea, and also in other Asian countries, Europe, and United States. Complainant has rights in the A.H.C. marks in China (since 2011). Moreover, Complainant has participated in diverse exhibitions while advancing into the Chinese market and selling cosmetic products including the A.H.C. products, such as Guangzhou Expo and Shanghai Expo since 2006 (Annex 4-7 to the Complaint). It is not conceivable that Respondent would not have been aware of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2016) particularly given that Respondent has used Complainant’s marks and the website at the disputed domain name is designed to appear as Complainant’s website.
Thus, the Panel concludes that the disputed domain name was registered in bad faith.
Complainant also has adduced evidence to show 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 online 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 A.H.C. marks, the confusingly similar domain name, as well as the affiliation statement on the website mentioned above, 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 fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website. In other words, Respondent has, through the use of a confusingly similar domain name and webpage contents, created a likelihood of confusion with the A.H.C. marks. Noting also the implication on the website that it is the official website of Complainant and claimed that Respondent is an authorized dealer of Complainant, potential partners and end users are led to believe that the website at the disputed domain name is either Complainant’s site or a site of an official authorized partner of Complainant, which it is not. 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 trademark, intended to ride on the goodwill of Complainant’s trademark 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 to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that Complainant 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: August 23, 2017
1 When the website () is changed into the Chinese version, the domain address converts to .
2
3 It stated: “© 2017 A.H.C官网 版权所有 ”
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