The Complainant is SSAB Technology AB of Stockholm, Sweden, represented by Ports Group AB, Sweden.
The Respondent is Nexperian Holding Limited of Hangzhou, Zhejiang, China; Sun Si Sheng, Liao Cheng Shi Long Ze Gang Cai You Xian Gong Si of Liaocheng, Shandong, China; Wang Ke Guo, Shan Dong Xin Lian Gang Cai You Xian Gong Si of Liaocheng, Shandong, China; Wang You, Wu Xi Zhong Nuo Xin Xi Ji Shu You Xian Gong Si of Wuxi, Jiangsu, China; Xu De Zeng, Xinchanglong of Liaocheng, Shandong, China; Zhang Guang Yu, Tian Jin Qi Jian Ke Ji Fa Zhan You Xian Gong Si of Tianjin, China, self-represented. 2. The Domain Names and Registrar
The disputed domain names , , , , , , , , , , , , , , , , , , and are 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 April 11, 2018. On April 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On April 12, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 13, 2018 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 April 16, 2018.
On April 13, 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 April 16, 2018. 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 proceeding commenced on April 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2018. On May 8, 2018, the Respondent submitted eight emails in Chinese querying what it should do. The Respondent did not file a substantive response. On May 15, 2018, the Center notified the Parties of the commencement of the panel appointment process.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 18, 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 A. Complainant
The Complainant is a company incorporated in Sweden, and is the owner of numerous registrations in jurisdictions around the world for the trade mark HARDOX (the "Trade Mark"), including United States of America trade mark registration number 1510676, registered since November 1, 1988.
The Complainant has been using the Trade Mark internationally for many years in connection with the manufacture and sale of advanced high strength steels and quenched and tempered steel products. B. Respondent
The Respondent is apparently an individual resident in China. C. The Disputed Domain Names
The disputed domain name was registered on March 12, 2012. The disputed domain names and were both registered on August 29, 2017. The disputed domain name was registered on December 27, 2011. The disputed domain name was registered on February 2, 2012. The disputed domain name was registered on April 25, 2012. The disputed domain name was registered on April 6, 2012. The disputed domain names , , and were all registered on February 11, 2018. The disputed domain names , , , , , and were all registered on March 1, 2018. The disputed domain name was registered on March 13, 2018. The disputed domain name was registered on February 4, 2018. D. The Websites at the Disputed Domain Names
13 of the disputed domain names are resolved to websites in Chinese and English language which promote the steel manufacturing businesses of various companies apparently based in China (the "Websites"). The remaining 7 disputed domain names have not been used. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the Registration Agreements for the disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules 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 order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for several reasons, including in particular the fact the contents of most of the Websites are in both English and Chinese.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a substantive response.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties' ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Consolidation of Respondents
Previous UDRP decisions suggest that consolidation of multiple respondents may be appropriate, under paragraphs 3(c) and 10(e) of the Rules, where the particular circumstances of a given case indicate that common control is being exercised over the disputed domain names or the websites to which the disputed domain names resolve, where consolidation would be fair and equitable to all parties, and where procedural efficiency supports consolidation (see section 4.11.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")).
In the present proceeding, the Complainant contends as follows:
(i) The previous WhoIs data for each of the disputed domain names share the same name, organization name, email address and physical address;
(ii) The disputed domain names were registered in a similar way;
(iii) Many of the disputed domains were registered on the same dates or within the same period of time;
(iv) The disputed domain names have all been registered with the same registrar and are using the same server;
(v) The disputed domain names each target the same Trade Mark; and
(vi) The Websites contain similar content, promoting steel manufacturers apparently based in China.
In all the circumstances, the Panel concludes sufficient evidence has been adduced to enable the conclusion to be drawn that common control is being exercised over the disputed domain names.
In all the circumstances, the Panel determines, under paragraph 10(e) of the Rules, that consolidation of the Respondents is procedurally efficient and equitable to all the Parties, is consistent with the Policy and Rules, and comports with prior relevant UDRP decisions in respect of this issue. 6.3. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain names incorporate the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7) together with non-distinctive and apparently meaningless combinations of letters and/or numbers.
Where a relevant trade mark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the respondent's use 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) The respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The 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 the trade mark or service mark at issue.
The Complainant has not authorized, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Websites, which, without the Complainant's authorization, promote the steel products of manufacturers apparently based in China, in direct competition with those provided by the Complainant under the Trade Mark.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
In light of the evidence of the Respondent's use of the Websites in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy. The evidence on the record indicates, accordingly, that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain names.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. 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 names , , , , , , , , , , , , , , , , , , and be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: June 1, 2018
Full & Egal Universal Law Academy