The Complainant is ArcelorMittal (SA) of Luxembourg, represented by Nameshield, France.
The Respondent is Zhou Zhou,of Chengde, Hebei, China. 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 August 9, 2018. On August 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 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 August 14, 2018, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On August 16, 2018, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 of the Complaint, and the proceedings commenced on August 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 9, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 10, 2018.
The Center appointed Rachel Tan as the sole panelist in this matter on September 19, 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
Founded in 2006, the Complainant is a multinational steel manufacturing corporation headquartered in Luxembourg. It is among the largest steel producing companies in the world with a presence in 60 countries around the world. In 2017, the Complainant’s revenue was reported to be USD 68.67 billion.
The Complainant is the owner of International Registration No. 947686 ARCELORMITTAL, registered on August 3, 2007, in International Classes 6, 7, 9, 12, 19, 21, 39, 40, 41 and 42, designating a large number of jurisdictions, including China. The registration covers a broad range of goods and services, including steel, machinery and machine tools and treatment of materials.
The Complainant is the registrant of the domain name registered on January 27, 2006.
The disputed domain name was registered by the Respondent on July 20, 2018. The disputed domain name resolves to an inactive website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the ARCELORMITTAL trade mark, the Respondent has no rights or legitimate interests with respect to the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. The Complainant requests transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions.
In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding. The Respondent did not comment on the language of the proceeding. The Center proceeded to issue its case-related communications to the Parties in both English and Chinese. The Center decided to accept the Complaint as filed in English, accept a Response in either English or Chinese, and appoint a panel familiar with both languages.
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 Panel having considered the circumstances finds that English shall be the language of this proceeding. The reasons are set out below:
(a) The Complainant is a company from Luxembourg. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur translation expenses;
(b) English is not the native language of either Party;
(c) The disputed domain name is in Latin script rather than in Chinese characters;
(d) If the Respondent does not possess a sufficient command of English to understand the Complaint, there were ample opportunities for the Respondent to raise an objection. The Center notified the Parties in English and Chinese regarding the language of the proceeding, but the Respondent did not reply; and
(e) The Respondent has failed to participate in the proceeding and has been notified of its default. The Complaint has been submitted in English. No foreseeable procedural benefit may be served by requiring Chinese to be used. On the other hand, the proceeding may proceed expeditiously in English. 6.2. Analysis of the Complaint A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has adduced sufficient evidence to demonstrate its established rights in the ARCELORMITTAL trade mark.
The disputed domain name replicates the Complainant’s ARCELORMITTAL trade mark in its entirety. The addition of “.top”, a generic Top-Level Domain (“gTLD”), “is a technical requirement of every domain name registration”. Groupon, Inc. v. Whoisguard Protected, Whoisguard, Inc. / Vashti Scalise,WIPO Case No. D2016-2087.
Therefore, the Panel finds that the disputed domain name is identical to the Complainant’s ARCELORMITTAL trade mark. Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
The Complainant contends that the Respondent is not “commonly known” by the name “Arcelormittal” but rather that the Respondent’s name bears no resemblance to the disputed domain name. The Complainant further contends that the Respondent is not related to nor has any business dealings with the Complainant. No license or authorization has been granted to the Respondent to make use of the ARCELORMITTAL trade mark or to register the disputed domain name.
In circumstances where the Complainant possesses exclusive rights to the ARCELORMITTAL trade mark whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the domain name, and the burden of production shifts to the Respondent. See International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio,WIPO Case No. D2002-0683.
The Respondent however has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, nor of any other circumstances giving rise to rights or legitimate interests in the disputed domain name. The disputed domain name points to a website which has been inactive since creation. Thus, there is no evidence that the Respondent has any demonstrable plans to offer goods or services in good faith under the disputed domain name, or to support a recognition of a legitimate claim to the disputed domain name.
The Panel thus concludes 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’s “ArcelorMittal” name is coined from the names of the two merged companies, Arcelor S.A. and Mittal Steel Company N.V. The ARCELORMITTAL trade mark has been registered and used around the world, including in China. The disputed domain name was registered well after the first registration of the Complainant’s ARCELORMITTAL trade mark and domain name.
The Respondent is based in China. The term “ArcelorMittal” has no meaning in the Chinese language and would be considered distinctive in this territory. By registering a domain name entirety composed of the term “Arcelormittal”, the Respondent cannot credibly claim not to have been aware of the Complainant’s trade mark.
The disputed domain name currently resolves to an inactive website. The “passive holding” of a domain name does not prevent a finding of bad faith. See, Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 ().
Based on the above facts, it is implausible to contemplate of any bona fide use to which the disputed domain name may be put by the Respondent.
Considering all the circumstances of the case, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain name and, the lack of a plausible reason for the Respondent’s passive holding of the disputed domain name leads the Panel to infer that the Respondent has registered and used the disputed domain name in bad faith.
Therefore, the Panel concludes that the Complainant has satisfied the third element under paragraph 4(a) 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.
Rachel Tan
Sole Panelist
Date: October 3, 2018
Full & Egal Universal Law Academy