Complainant is Shell Brands International AG of Baar, Switzerland, represented by Pointer Brand Protection and Research, Netherlands.
Respondent is Wang Fu Guang of Lanzhou, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Gandi SAS (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2018. On July 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 6, 2018, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
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 Respondent of the Complaint, and the proceedings commenced on July 16, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 5, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 6, 2018.
The Center appointed Yijun Tian as the sole panelist in this matter on August 9, 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
Complainant, Shell Brands International AG, is a company incorporated in Baar, Switzerland. Complainant is one of the largest oil and gas companies in the world, and is active in oil exploration, production, transportation and related activities. Found in 1907, Complainant operates in more than 70 countries, with an average 92,000 employees. Complainant produces the equivalent of 3.7 million barrels of oil per day, and had a revenue of USD 233.6 billion in 2016 (Annex 2 to the Complaint). Complainant has been active in China since it was established in 1907 (Annex 8a and 8b to the Complaint). Complainant currently employs more than 20,000 staff and contractors in companies and joint ventures in China.
Complainant has rights in the SHELL marks. Complainant is the exclusive owner of numerous SHELL trademarks worldwide, including the word mark SHELL registered in China since August 21, 2013 (the Chinese Trademark Registration No. 10927804), and the word mark SHELL registered in the European Union (“EU”) on June 11, 2001. (EU Trademark Registration No. 001118801) (Annex 14 to the Complaint). The mark SHELL has been ranked among the top 10 in the Fortune Global 500 since 2001 (Annex 3 to the Complaint). The brand has been continuously in Interbrand’s top 100 Best Global Brands from 2001 onwards (Annex 4 to the Compliant). Complainant also owns and operates domain names which contain SHELL mark in its entirety, such as its global website at the domain name , and its website for China at the domain name (Annexes 6 and 7 to the Complaint). B. Respondent
Respondent is Wang Fu Guang, apparently an individual residing in of Lanzhou, China. The disputed domain name was registered on August 21, 2017, currently resolving to a website providing products and services under Complainant’s trademark and indicating that the website is the website of authorized agent of Complainant. 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical to Complainant’s SHELL word mark. The disputed domain name includes SHELL mark in its entirety. The addition of the generic Top-Level Domain (“gTLD”) “.bet” should be disregarded under the confusing similarity test.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy, (paragraphs 4(a)-(c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the SHELL marks acquired through registration. The SHELL marks have been registered in China (2013). The disputed domain name comprises the SHELL mark in its entirety. The disputed domain name only differs from Complainant’s trademarks by the gTLD suffix “.bet” to the SHELL marks. This does not eliminate the confusing similarity between Complainant’s registered trademarks and the disputed domain name. In relation to the gTLD suffix, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states:
“The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11).
Thus, the Panel finds that disregarding the gTLD suffix “.bet”, the disputed domain name is confusingly similar to the SHELL marks.
The Panel therefore holds that Complainant fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) 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 Complainant’s trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
According to the Complaint, Complainant is one of the largest oil and gas companies in the world, and operates in more than 70 countries, with an average 92,000 employees. Complainant has been active in China since it was established in 1907, and it currently employs more than 20,000 staff and contractors in companies and joint ventures in China. Complainant has rights in the word mark SHELL in China since 2013, which precede Respondent’s registration of the disputed domain name (2017).
Moreover, Respondent is not an authorized dealer of Shell-branded products or services but however claiming it is a professional agent authorzied by the Complainant on its website (and use the logo of SHELL Company on its website). Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “shell” in the disputed domain name and in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the SHELL marks or to apply for or use any domain name incorporating the SHELL mark and Respondent has, through the use of a confusingly similar domain name and its webpage contents, created a likelihood of confusion with the SHELL marks. Noting also that apparently the website implies that it is the website of a professional agent authorized by Complainant, potential partners and end users are led to believe that the website at the disputed domain name is either Complainant’s site in China or a site of an official authorized partner of Complainant, which it is not;
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name on August 21, 2017, long after the SHELL marks became internationally known and famous in China. The disputed domain name is confusingly similar to Complainant’s SHELL marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, according to the information provided by Complainant, Respondent was in actuality advertising, offering and selling purported Shell products or services at the website “www.”.
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.
The Panel finds that Complainant has a widespread reputation in the SHELL marks with regard to its products and services. Complainant is one of the largest oil and gas companies in the world, and it operates in more than 70 countries, with an average 92,000 employees. Complainant has been active in China since it was established in 1907, and it currently employs more than 20,000 staff and contractors in companies and joint ventures in China. Complainant has rights in the SHELL marks in China and internationally. It is not conceivable that Respondent would not have been aware of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2017) particularly given that Respondent has used Complainant’s marks and the website at the disputed domain name is designed to appear as the website of a professional agent authorzied by Complainant.
Thus, the Panel concludes that the disputed domain name was registered in bad faith.
Complainant also has adduced evidence to show that by using the confusingly similar disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location”. To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Given the widespread reputation of the SHELL marks, the confusingly similar domain name, as well as the affiliation statement on the website mentioned above, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website. In other words, Respondent has, through the use of a confusingly similar domain name and webpage contents, created a likelihood of confusion with the SHELL marks. Noting also the implication on the website that it is the website of a professional agent authized by Complainant, potential partners and end users are led to believe that the website at the disputed domain name is either Complainant’s site or a site of an official authorized partner of Complainant, which it is not. The Panel therefore concludes that the disputed domain name is being used by Respondent in bad faith.
In summary, Respondent, by choosing to register and use a domain name which is confusingly similar to Complainant’s trademark, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision
For all 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 Complainant.
Yijun Tian
Sole Panelist
Dated: August 21, 2018
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