The Complainant is Amundi S.A., France, represented by Nameshield, France.
The Respondent is WangZhen Guang, China. 2. The Domain Name and Registrar
The disputed domain name is registered with eName Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2019. On May 7, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 8, 2019, 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 May 11, 2019, 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 May 13, 2019.
On May 11, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On May 13, 2019, 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 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 of the Complaint, in English and Chinese, and the proceeding commenced on May 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default, in English and Chinese, on June 7, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 18, 2019. 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 France and is one of the world’s most prominent asset management companies, with more than EUR 850 billion under management.
The Complainant is the owner of international trade mark registration number 1024160 for the trade mark AMUNDI (the “Trade Mark”), designating China, registered on September 24, 2009. The Complainant has used the Trade Mark since 2010. B. Respondent
The Respondent is apparently an individual with an address in China. C. The Disputed Domain Name
The disputed domain name was registered on April 25, 2019.
D. The Website at the Disputed Domain Name
The disputed domain name has not been used. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is 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 Agreement for the disputed domain name 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 UDRP 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 the following reasons:
(i) The English language is the language most widely used in international relations and is one of the working languages of the Center;
(ii) The disputed domain name is formed by words in Roman characters (ASCII) and not in Chinese script;
(iii) The disputed domain name is confusingly similar to the Complainant’s Trade Mark;
(iv) In order to proceed in Chinese, the Complainant would have had to retain specialised translation services at a cost very likely to be higher than the overall cost of this proceeding. The use of Chinese in this case would therefore impose a burden on the Complainant which must be deemed significant in view of the low cost of this proceeding;
(v) The Complaint is written in English but the Center informed the Respondent in Chinese and afforded the Respondent the opportunity to respond in Chinese; and
(vi) The Complainant asks that the Complaint be in English for the better understanding of the parties.
The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.
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.
Although there is insufficient evidence before the Panel to support the conclusion that the Respondent is conversant in the English language, the Panel notes that the Respondent has chosen not to contest this proceeding, and is mindful of the need to ensure the proceeding is conducted in a timely and cost-effective manner.
The Panel does not consider the above grounds (i), (ii), (iii) and (vi) relied upon by the Complainant persuasive.
The Panel notes that all of the communications from the Center to the Parties in this proceeding have been sent in both Chinese and English language.
Had the Respondent chosen to take part in this proceeding, the Panel would have accepted the filing of a response in Chinese. In all the circumstances, however, and in light of the Complainant’s grounds (iv) and (v) above, the Panel finds it is not foreseeable that the Respondent would be prejudiced, should this Decision be rendered in English.
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 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 name incorporates 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 the prefix “jap”, a common abbreviation for the country Japan or for a citizen of Japan.
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 notes also the Complainant’s evidence of its operations in Japan under the Trade Mark and of its reputation in the Trade Mark in that jurisdiction.
The Panel therefore finds that the disputed domain name is 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 authorised, licensed, or permitted the Respondent to register or use the disputed domain name 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 name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
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 name, and therefore finds that the requirements of paragraph 4(a)(ii) of the Policy are met. C. Registered and Used in Bad Faith
Given the notoriety of the Complainant and of its Trade Mark in the global asset management field (including in China, where the Respondent is apparently based, and also in Japan); the similarity between the disputed domain name and the Trade Mark; the lack of any explanation from the Respondent; and the passive use of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time it registered the disputed domain name.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is 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 name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: July 2, 2019
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