The Complainant is Cheyne Capital Holdings Limited of British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Dechert, United Kingdom.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China / Lu Huang Ping of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name (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 October 23, 2017. On October 24, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 26, 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.
The Center sent an email communication to the Complainant on October 30, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 3, 2017.
On October 27, 2017, the Center sent 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
October 30, 2017. The 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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on November 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2017.
The Center appointed Kar Liang Soh as the sole panelist in this matter on December 12, 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 first established in 1999 as an alternative asset manager specialising in corporate credit, real estate and asset backed strategies. It is part of a group of companies in the international asset management space. Among the companies in the group is Cheyne Capital Management (UK) LLP which launched its first fund in 2000 and currently has over USD 10 billion in assets under management.
The Complainant’s group has offices in London, New York, Switzerland and Bermuda. The Complainant has received industry awards, including in recent years, winning the Best Structured Finance Fund at CreditFlux awards 2017, Management Firm of the Year and Specialist Credit & Fixed Income Fund of the Year at the 2016 EuroHedge awards, Best Manager in Event-Driven and Distressed at the Financial News Hedge Fund Awards 2015, and EuroHedge Management Firm of the Year 2012.
The Complainant owns a substantial portfolio of trademark registrations for the trademark CHEYNE CAPITAL around the world including the following: Jurisdiction Trademark No. Registration Date
United Kingdom
UK00002217132
June 9, 2000
Hong Kong, China
200108848
December 14, 1999
Bermuda
32796
January 9, 2008
The Complainant’s international portfolio also includes trademark registrations for the trademark CHEYNE, including: Jurisdiction Trademark No Registration Date
European Union
001453034
April 5, 2001
United States of America
2661408
December 17, 2002
China
G865838
July 18, 2005
The Complainant’s group maintains a website under the domain name .
The original named Respondent, Nexperian Holding Limited, appears to be a privacy service. Very little information about the Respondent is available in this proceeding. The Respondent appears to be an individual based in China, and whose existence was disclosed only after the Complaint was filed.
The Disputed Domain Name was registered on August 13, 2015. On or before the date of the Complaint, the Disputed Domain Name did not resolve to any active website. On October 6, 2017, the Complainant’s representatives wrote a letter to the Respondent to draw attention to the Complainant’s trademark rights and to request the transfer of the Disputed Domain Name to the Complainant. The Respondent did not reply to the letter. The attempt the Center to communicate with the Respondent via the Respondent’s postal address as provided by the Registrar failed as the postal address was not valid. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
a) The Disputed Domain Name is confusingly similar to the Complainant’s trademarks of CHEYNE and CHEYNE CAPITAL. The Disputed Domain Name includes the trademark CHEYNE CAPITAL in its entirety. The addition of the word “China” is a geographic term, and would increase rather than detract from the confusing similarity with the Complainant’s trademarks;
b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
There is no evidence that the Respondent is commonly known by CHEYNE, CHEYNE CAPITAL, or the Disputed Domain Name. There is also no evidence of the Respondent’s use of, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or service. The Disputed Domain Name does not resolve to a website despite having been registered over two years ago. The Complainant has not licensed, consented to or otherwise permitted use of its CHEYNE and CHEYNE CAPITAL marks by the Respondent; and
c) The Disputed Domain Name was registered and is being used in bad faith. The Respondent registered the Disputed Domain Name in order to unfairly benefit from the Complainant’s trademark rights.
The Respondent was fully aware of the Complainant and its business at the time of registering the Disputed Domain Name. The Respondent’s use of the Disputed Domain Name amounts to passive holding in bad faith. The Complainant’s trademarks are widely known and have a strong reputation. It is not plausible that any active use of the Disputed Domain Name by the Respondent would be legitimate. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The default language of the proceeding is Chinese because the language of the Registration Agreement of the Disputed Domain Name was in Chinese. The Complainant has requested that English be adopted instead as the language of the proceeding. Having considered the circumstances, the Panel exercises its discretion under paragraph 10 of the Rules and grants the Complainant’s request. In doing so, the following factors were taken into consideration:
a) The Complainant is headquartered in the United Kingdom and conducts its business primarily in English. Its team conducting the proceeding is unable to communicate in Chinese;
b) The Respondent has chosen not to participate in the proceeding by failing to file a Response;
c) No administrative benefit to the proceeding may foreseeably arise if the Panel were to insist on the default language
d) Requiring the Complainant to submit the Complaint in Chinese would likely lead to additional burden on the Complainant as well as delay in the proceeding; and
e) The Panel is bilingual in English and Chinese and is equipped to deal with documents submitted in the Chinese language should the Respondent choose to do so. 6.2 Discussion
The Complainant is required to establish all three limbs of paragraph 4(a) of the Policy to succeed in this proceeding:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the 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.
The Panel shall consider each of these three limbs in turn. A. Identical or Confusingly Similar
Based on the evidence furnished by the Complainant, the Panel finds that the Complainant indeed owns rights in the trademarks CHEYNE and CHEYNE CAPITAL. The Disputed Domain Name incorporates both of these trademarks in their entirety. The Panel agrees with the Complainant that the geographic term “China” merely serves to associate the Disputed Domain Name and potentially its use geographically with the territory of China. In the Panel’s view, such geographical association does not detract from the confusing similarity of the trademarks CHEYNE and CHEYNE CAPITAL which have been incorporated entirely in the Disputed Domain Name. It is noted from the consensus opinion of past UDRP panels (as outlined in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), that the mere addition of generic or descriptive terms to a trademark in a domain name is insufficient to prevent a finding of confusing similarity between the trademark and the domain name.
The Panel holds that the Disputed Domain Name is confusingly similar to the Complainant’s trademarks CHEYNE and CHEYNE CAPITAL. The first limb of paragraph 4(a) of the Policy is therefore established. B. Rights or Legitimate Interests
The Complainant has the evidential burden to show prima facie that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. The Complainant has confirmed that the Respondent has been authorised or permitted to use the trademarks CHEYNE and CHEYNE CAPITAL in the Disputed Domain Name. There is no evidence before the Panel indicating that the Respondent is in any way commonly known by the Disputed Domain Name. There is also nothing in the evidence that suggests the Respondent is making a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the Disputed Domain Name. The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The evidential burden of showing otherwise therefore shifts to the Respondent.
Since the Respondent has chosen not to participate in the proceeding, the prima facie case is not challenged and stands and the second limb of paragraph 4(a) is also established. C. Registered and Used in Bad Faith
Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and a long line of cases under the UDRP (e.g., Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787; News Group Newspapers Limited and News Network Limited v. Momm Amed Ia,WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel,WIPO Case No. D2000-1598; RRI Financial, Inc., v. Ray Chen,WIPO Case No. D2001-1242) have long established that passive holding of a domain name registration based on a reputable trademark without putting the domain name to genuine use may in appropriate circumstances amount to bad faith registration and use under paragraph 4(a) of the Policy. Such circumstances include the reputation of the complainant’s trademark, the lack of use or contemplated use of the disputed domain name, the failure of the respondent to answer the complainant’s cease-and-desist letter, the concealment of the respondent’s identity, all of which point to the implausibility of the disputed domain name being registered or used in good faith.
In the present circumstances, the Complainant has shown that the trademark CHEYNE CAPITAL is associated with an impressive reputation in the business of asset management. The registration of the trademark CHEYNE CAPITAL dates as far back as 18 years ago. A period of 2 years during which the Disputed Domain Name has not been put to use is too long in the Panel’s view. The Complainant has shown that the Disputed Domain Name did not resolve to a website. There is no evidence before the Panel to suggest that the Disputed Domain Name has been otherwise put to use. The Respondent has remained silent in the face of the Complainant’s cease-and-desist letter as well as this proceeding. The Respondent has employed a privacy service to conceal the Respondent’s identity. But for the proceeding, the Respondent’s identity would have remained unknown. Moreover, at least the postal address from among the contact details of the Respondent as provided by the Registrar is invalid. The Complainant has already discharged the evidential burden to show that the Respondent, being an individual, has no rights or legitimate interests in the Disputed Domain Name. All circumstances point towards how highly implausible it is for the Respondent to have registered or used the Disputed Domain Name in good faith.
Having considered the totality of the circumstances, the Panel concludes that the Disputed Domain Name was registered and used in bad faith. The third limb of paragraph 4(a) is therefore established. 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.
Kar Liang Soh
Sole Panelist
Date: January 22, 2018
Full & Egal Universal Law Academy