The Complainant is AXA SA of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Volkan Kükükbudak, Freiberufler-Designer of Koeln, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with united-domains AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2018. On October 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 22, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 24, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint.
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 November 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 26, 2018. The Respondent did not submit any substantive response. Accordingly, the Center notified the Respondent’s default on November 27, 2018.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on December 3, 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 AXA SA is the holding company of the AXA Group, one of the largest insurance companies in the world. The Complainant owns multiple trademark registrations incorporating its AXA trademark, including the International Registration No. 490030 registered on December 5, 1984 and the German trademark No. 2909807 registered on August 10, 1995.
The Respondent is an individual living in Germany. The disputed domain name was registered on September 5, 2014 and does not resolve to an active webpage. 5. Parties’ Contentions A. Complainant
The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceedings
In an email to the Center of October 26, 2018, the Respondent claimed that he only understood German and requested to continue to communicate in German throughout the administrative proceedings (“Bitte bleiben wir in der deutschen Sprache.”).
The Registration Agreement for the disputed domain names is in German, but the Complainant has pointed out in its Complaint that the Respondent owned another domain name that leads to a website written in English and that the Complainant does not speak or understand the German language. Therefore, the Complainant has requested English to be the language of the proceedings.
Paragraph 11(a) of the Rules stipulates 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”.
Paragraph 10(c) of the Rules provides that “the Panel shall ensure that the administrative proceeding takes place with due expedition”.
Taking into account the circumstances of this case, the Panel does not consider it prejudicial to the Respondent if English were adopted as the language of the proceeding. The Panel finds that substantial additional expense and delay would likely be incurred if the Complaint and annexes thereto had to be translated into German. In view of the Policy aim of facilitating a time and cost-efficient procedure for the resolution of domain name disputes, the Panel finds it appropriate to exercise its discretion according to paragraph 11(a) of the Rules and allow the proceeding to be conducted in English. The Panel accepts the Complaint as filed in English and the Respondent’s email communications as submitted in German, and will proceed in its discretion to render its decision in English. B. Identical or Confusingly Similar
The Complainant has shown that it has rights in the AXA trademark, which is reproduced in its entirety in the disputed domain name.
It has become a consensus view among UDRP panels that the applicable Top-Level Domain (“TLD”) in a domain name is a standard registration requirement and as such may be disregarded when assessing confusing similarity under the first element of the Policy. This practice also applies with regard to new generic Top-Level Domains (“gTLDs”) such as “.koeln” (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.11.1 and 1.11.2).
Therefore, the Panel concludes that the disputed domain name is identical to the Complainant’s AXA trademark. Accordingly, the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name.
Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The disputed domain name resolves to an inactive website.
From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding (cf. WIPO Overview 3.0, section 3.3).
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, and (iii) the implausibility of any good faith use to which the domain name may be put.
The Panel is satisfied that all of the above mentioned factors are fulfilled in the case at hand. Accordingly, the Complainant has also fulfilled 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.
Tobias Zuberbühler
Sole Panelist
Date: December 17, 2018
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