The Complainant is QlikTech International AB of Lund, Sweden, represented by Ports Group AB, Sweden.
The Respondent is Yi Qing, Qing Yi of Suzhou, Jiangsu, China, self-represented. 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 March 16, 2018. On March 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 19, 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 March 23, 2018, 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 March 26, 2018. The Respondent submitted an informal email in Chinese on March 28, 2018, but 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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on April 4, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 24, 2018. The Respondent did not submit any substantive response. Accordingly, on April 25, 2018, the Center informed the Parties that it would proceed to panel appointment.
The Center appointed Jonathan Agmon as the sole panelist in this matter on May 2, 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, QlikTech International AB (“QlikTech”) is a company, headquartered in Sweden. QlikTech was founded in 1993 and engages in intuitive platform solutions for self-service data visualization, guided analytics applications, embedded analytics and its services are rendered worldwide.
The Complainant is the owner of a number of registered trademarks, both figurative and word marks, including international trademark no. 840505 for the word mark QLIKTECH, registered on November 9, 2004.
The disputed domain name was registered on December 21, 2017.
Currently, the disputed domain name is inactive. 5. Parties’ Contentions A. Complainant
The Complainant argues that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark or service mark in which the Complainant has rights.
The Complainant asserts that, although usually the top-level suffix in the domain name is disregarded under the confusing similarity test, this is not the case where the applicable top-level suffix may itself form part of the relevant trademark.
In the case before the Panel, the trademark is QLIKTECH, and should be compared to the entirety of the disputed domain name . The comparison reveals that the Complainant’s trademark is clearly recognizable in the disputed domain name and therefore the disputed domain name is confusingly similar to the Complainant’s registered rights.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant asserts that the Respondent has no affiliation to it and therefore no rights or authorization to use or associate itself with the Complainant.
The Complainant further argues that the Respondent is not known under the disputed domain name and it is most likely that the intent is to tarnish the Complainant’s trademark.
It is further alleged that the domain name was registered and was used in bad faith. The Complainant has been well exposed under its trademarks and has been using them for many years before the disputed domain name was registered. The disputed domain name is not being used in a genuine, noncommercial manner, rather it is disrupting the Complainant’s business.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent sent an informal email communication on March 28, 2018, in which it stated that it registered the disputed domain name in order to do technical research while using the Complainant’s product, and that it intended to establish a technical forum. The Respondent did not submit any formal Response. 6. Discussion and Findings 6.1. Language of the Proceeding
Paragraph 11 of the Rules provides that:
“(a) 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 language of the Registration Agreement for the disputed domain name is Chinese, as confirmed by the Registrar in its verification email to the Center of March 19, 2018.
The Complainant requested that the language of the proceeding be English.
The Respondent did not respond on the language of the proceeding.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not 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).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) The disputed domain name consists of Latin letters, rather than Chinese characters;
(ii) The Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language;
(iii) The Respondent did not object to the Complainant’s request that English be the language of the proceeding.
(iv) Having been notified of these proceedings in both Chinese and English, the Respondent has chosen not to participate in these proceedings.
Upon considering the above, the Panel determines that English be the language of the proceeding. 6.2. Substantive Issues A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The Complainant is the owner of a number trademarks registered for the QLIKTECH mark. The disputed domain name is which is comprised of the word “QLICK” and the Top-Level Domain (“TLD”) “.tech”.
Typically the applicable TLD is viewed as a standard registration requirement and would not, as such, be taken into consideration, when determining confusing similarity under the first element of the Policy.
Paragraph 4(a) of the Policy does not limit the finding of identity or confusing similarity to the second level domain. In fact, there is now and established body of decisions that provide clearly that in appropriate circumstances, especially, when the applicable TLD and the second-level portion of the disputed domain name, in combination, comprise the relevant trademark, the TLD can be considered when evaluating the confusing similarity. (See Tesco Stores Limited v. Mat Feakins,WIPO Case No. DCO2013-0017; Bayerische Motoren Werke AG v. Masakazu/Living By Blue Co., Ltd.,WIPO Case No. DMW2015-0001; WeWork Companies, Inc. v. Michael Chiriac, Various Concepts Inc.,WIPO Case No. D2016-1817). The addition of the word “qlick” to the gTLD “.tech” creates the Complainant’s mark in its entirety, i.e., QLIKTECH. The Panel finds under the particular circumstances of this case when applying the test of identity or confusing similarity it is evident that the disputed domain name is confusingly similar to the Complainant’s trademark. The existence of the “.” (period) between the components QLIK and TECH in the disputed domain name does not serve to avoid a finding of confusing similarity between the domain name and the Complainant’s registered trademark.
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Panel finds that the Complainant has established a prima facie case in this regard. In previous decisions, Panels found that in the absence of any license or permission from the Complainant to use its trademark, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed (Groupe Auchan v. Gan Yu,WIPO Case No. D2013-0188; LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No.
D2010-0138). The Complainant has not licensed or otherwise permitted the Respondent to use the Complainant’s trademarks or a variation thereof. The evidence presented indicates that the Respondent is not engaged in a bona fide offering of goods or services nor has it produced any actual evidence of demonstrable preparation to do so.
The Respondent has not submitted any formal Response to the Complaint and did not provide any clear explanation or actual evidence to show any rights or legitimate interests in the disputed domain name sufficient to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned a registration for the QLIKTECH trademark since the year 2004. In view of the evidence filed by the Complainant, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735).
Furthermore, when including the TLD“.tech”, the disputed domain name includes the Complainant’s trademark QLIKTECH in its entirety. Previous UDRP panels ruled that “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see E, Inc v. Triple E Holdings Limited,WIPO Case No. D2006-1095).
On February 6, 2018, the Complainant sent to the Respondent a cease and desist letter and requested the transfer of the disputed domain name. The Respondent did not answer. The Complainant sent the Respondent a reminder on March 14, 2018. The Respondent’s failure to express any denial or explanation despite the opportunities offered to him reinforces the inference of bad faith registration and bad faith use (see Sanofi-aventis v. A Domain Privacy / Transure Enterprise Ltd, Host Master,WIPO Case No. D2009-1634).
Finally, the disputed domain name is held passively. Passive holding of a disputed domain name may be considered as evidence of bad faith under the appropriate circumstances. Such circumstances include the failure of the Respondent to submit a response, to submit arguments and any evidence of actual or contemplated good-faith use and respond to cease and desist letters. Under the particular circumstances of this case, the Panel considers the Respondent’s passive use to be another evidence of bad faith registration and use of the disputed domain name.
Based on the evidence presented to the Panel, including the registration of the disputed domain name long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s mark and the Respondent’s failure to submit a formal response, answer the cease and desist letters, and passive use, the Panel draws the inference that the disputed domain name was registered and is being used in bad faith.
Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) 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.
Jonathan Agmon
Sole Panelist
Date: May 14, 2018
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