The Complainant is Lidl Stiftung & Co. KG of Neckarsulm, Germany, represented by HK2 Rechtsanwälte, Germany.
The Respondent is Chen Chang Jiang of Shenzhen, Guangdong, China, self-represented. 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 2, 2018. On February 2, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 5, 2018, 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 7, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Respondent requested that Chinese be the language of the proceeding and the Complainant requested that English be the language of the proceeding on the same day.
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 in English and Chinese of the Complaint, and the proceedings commenced on February 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 14, 2018. The Response did not file any substantive response. Accordingly, on March 15, 2018, the Center informed the Parties of the commencement of the panel appointment process.
The Center appointed Douglas Clark as the sole panelist in this matter on March 21, 2018. 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 global discount supermarket chain based in Germany with stores in 28 countries.
The Complainant owns numerous trademark registrations for LIDL, including International registration no. 887902 (registered on April 10, 2006) which designates China.
The Respondent is an individual based in China. The Respondent is the registrant of over 900 domain names including a number that incorporate well-known trademarks such as , and .
The disputed domain name was registered on May 3, 2017 and currently does not resolve to an active page. At one point it resolved to a page stating that the disputed domain name was for sale (with information in English and Chinese). 5. Parties’ Contentions A. Complainant
The Complainant’s contentions are as follows:
Identical or confusingly similar
The Complainant contends that the dispute domain name is confusingly similar to the Complainant’s registered trademark LIDL because the disputed domain name incorporates the Complainant’s LIDL mark. The inclusion of a generic term (“group”) and the addition of the generic Top-Level Domain (“gTLD”) does not avoid the finding of confusing similarity.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for LIDL. It, therefore, has no rights or legitimate interests in the disputed domain name.
The disputed domain name was registered and is being used in bad faith
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant’s rights in the LIDL mark because of its worldwide reputation. The fact the Respondent has registered a number of other international brands as domain names strengthens the inference it knew of the Complainant. Even though the disputed domain name is not being used, previous UDRP decisions have found that passive holding can be use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
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 Complainant requested the language of the proceeding be English on the grounds that the disputed domain name is in Latin characters, not Chinese script and if the Complainant were to translate documents in Chinese, the proceedings may be delayed and the Complainant would incur unnecessary expense and the proceedings may be delayed.
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 Respondent stated in an email in Chinese that it did not understand English and wanted the complete Complaint translated into English.
The final determination of the language of the proceeding lies with this Panel.
On the facts of this case, the Panel does not consider it appropriate to require the Complainant to translate the Complaint as it will unnecessarily delay the proceeding. This is a clear case of cybersquatting that the Policy was designed to stop.
Although the Respondent requested the Complaint be translated, the evidence shows that the Respondent has registered over 900 domain names many of them in English or incorporating the trademarks of famous international brands. The Respondent is a professional domainer and clearly understands the nature of these proceedings. Given the clear evidence of cybersquatting, without some indication of the grounds of its defense the Panel did not consider it fair on the Complainant to require a translation.
The Panel will render its decision in English. A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s LIDL trademark.
It incorporates the Complainant’s registered trademark LIDL in its entirety together with the generic term “group”. According to previous UDRP decisions, the “addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The first element 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.
Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The fact the disputed domain name resolves to a page offering for sale the disputed domain name, with no content related to the Complainant does not preclude a finding that it has been used in bad faith. Currently, the disputed domain name does not resolve to an active page. It is well established that passive use or non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. (WIPO Overview 3.0, section 3.3).
Further, the disputed domain name has been offered for sale. Combined with the fact that the Respondent has registered numerous other domain names of well-known marks, the Panel has no hesitation in finding that the Respondent has registered the disputed domain name for either the purposes of re-selling for a price higher than the cost of acquisition or to prevent the Complainant from reflecting its mark in the disputed domain name. This constitutes bad faith under sub-paragraphs 4(b)(i) and 4(b)(ii) of the Policy.
The third part of paragraph 4(a) of the Policy is therefore satisfied. 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 11, 2018
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