The Complainant is Oberalp Deutschland GmbH of Aschheim, Germany, represented by RLTG Ruttensperger Lachnit Trossin Gomoll, Germany.
The Respondent is Lu Kuan of Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2018. On June 29, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 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 July 5, 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 July 6, 2018. The 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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on July 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 1, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 2, 2018.
The Center appointed Douglas Clark as the sole panelist in this matter on August 7, 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, founded by Josef Liebhard on July 8, 1935 in Munich, is part of an Italian retail group that sells mountaineering and snow-sport equipment and clothing using the trade name Salewa.
The Complainant is the owner of SALEWA trademark in several jurisdictions, including International trademark nos. 775644, 928440, 1065722 and registered respectively on February 13, 2002, February 23, 2007, September 29, 2010 which designate China as well as Hong Kong Trademark registration no. 301828107, registered on February 7, 2011.1
The Complainant is also the owner of the domain name .
The Respondent is an individual who in his or her domain name registration gives a purported address in the province of HK, China. This appears to be reference to Hong Kong. However, other information in the WhoIs registrar suggests she or he is in fact based in the Mainland of China.
The disputed domain name was registered on March 30, 2018, and previously resolved to a website selling products under the Complainant’s trademark. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant contends that the disputed domain name and the trademark SALEWA are confusingly similar. The disputed domain name contains SALEWA in its entirety as the distinctive part of the disputed domain name. The additional English letter “z” is a non-distinctive letter and the generic Top-Level Domain (“gTLD”) “.top” is generally disregarded when making a comparison. 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 trademark registrations for the trademark SALEWA. It, therefore, has no rights or legitimate interests in the disputed domain name. Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the SALEWA trademark given its worldwide reputation and the Respondent acquired the disputed domain name to disrupt the business of the Complainant and to prevent the Complainant from reflecting its mark in a corresponding domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceedings
The Language of the Registration Agreement is in Chinese.
The Complainant requests that the language of proceedings be English on the grounds that the Complainant does not understand or speak Chinese language; the Respondent is based in Hong Kong, where English is an official language; the website under the disputed domain name is written in English; and the obligation to translate all case relevant documents would be an unfair disadvantage to the Complainant.
The Respondent did not respond to this request.
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 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 final determination of the language of the proceedings lies with this Panel.
The Respondent did not respond to the Center’s preliminary determination.
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expense. The website under the disputed domain name was solely written in English. These factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Substantive Issues
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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 use in bad faith. A. Identical or Confusingly Similar
The disputed domain name , other than the gTLD “.top” is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s SALEWA mark in full with the additional letter “z” that is non-distinctive. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark.
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 of WIPO Panel Views on Selected UDRP Questions, Third Edition (“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 is internationally well-known and owns numerous trademark worldwide. The Respondent has no business or any kind of relationships (licensor, distributor) with the Complainant.
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. 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 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.
The disputed domain name currently resolves to an inactive page. However, based on the evidence filed by the Complainant, in or around June 2018, the disputed domain name resolved to a website that appeared to be selling Salewa clothing products at a discounted price and used the Complainant’s SALEWA trademark and logo at the top of its webpages. The use of the Complainant’s trademark shows that the Respondent clearly knew of the Complainant. The webpage was therefore registered with the intention to mislead potential customers.
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 website 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 website or location or of a product or service on your website or location.”
Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The third part of the 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: August 22, 2018
1 The Complainant did not include details of the Hong Kong Trade Mark Registration with its complaint. The mark was identified by the Panel’s own search.
Full & Egal Universal Law Academy