The Complainant is David Campbell, Indonesia, self-represented.
The Respondent is Wuwen Ni, Wu Wen Ni, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2019. On July 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 10, 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 July 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 amendment to Complaint in English on July 12, 2019. Further to the Center’s Complaint Deficiency Notification, the Complainant filed an amended Complaint on August 2, 2019.
On July 11, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On July 12, 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, in English and Chinese, of the Complaint, and the proceeding commenced on August 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 25, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 26, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 2, 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.
On September 11, 2019, the Panel issued Panel Order No. 1, requesting the Complainant to provide further details and evidence regarding the Complainant’s relevant website, trade mark registration, and related corporate entities.
On September 16, 2019, the Complainant made a supplemental filing with the Center in accordance with the Panel Order. The Respondent did not make any submissions in respect of the Panel Order. 4. Factual Background A. Complainant
The Complainant is an individual resident in Indonesia and the operator since 2013 of a furniture business under the name “David Ross Furniture”.
A company incorporated in Singapore of which the Complainant is a director and the majority shareholder, David Ross Furniture Pte Ltd, registered the disputed domain name on February 15, 2013, before allowing it to lapse in 2019. The Complainant previously promoted his business and used the name “David Ross Furniture” on the Complainant’s website to which the disputed domain name was formerly linked.
A further company also incorporated in Singapore and associated with the Complainant, Cempaka Holdings Pte Ltd, is also the owner of the DAVID ROSS Trade Mark in Singapore, under registration No. T1407740D, with a registration date of December 30, 2014 (“the Trade Mark”). B. Respondent
The Respondent is apparently an individual resident in China. C. The Disputed Domain Name
The disputed domain name was registered by the Respondent on May 8, 2019. D. The Website at the Disputed Domain Name
The disputed domain name has been used by the Respondent in respect of a pornographic website (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name and the disputed domain name has been 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 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 several reasons, including the fact the disputed domain name was previously registered by David Ross Furniture Pte Ltd under an English language Registration Agreement.
The Panel would have accepted a response in Chinese, but 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 a conclusion that the Respondent is conversant in English, the Panel notes also 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.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
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 Marks acquired through use and registration. The Panel finds that the Complainant has provided relevant evidence for the purpose of the Policy to establish unregistered trademark rights for DAVID ROSS FURNITURE as of February 2013 and registered trademark rights for DAVID ROSS since December 2014.
The disputed domain name incorporates the entirety of both of the DAVID ROSS Trade Mark and the unregistered Trade Mark DAVID ROSS FURNITURE (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) and is, excluding the gTLD “.com”, identical to the DAVID ROSS FURNITURE unregistered Trade Mark.
The Panel therefore finds that the disputed domain name is identical or confusingly similar to the Trade Marks. 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 he or she 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 Respondent has made use of the disputed domain name, for commercial gain, by providing pornographic content on the Website.
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. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The evidence on record indicates that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain name, by opportunistically registering the disputed domain name shortly after its prior registration by the Complainant was allowed to lapse, and by resolving it to the Website for commercial gain.
In light of the evidence of the Respondent’s use of the Website in the manner described above, the fact the disputed domain name is almost identical to the name of the Complainant’s subsidiary and otherwise incorporates the entirety of the Trade Mark, and the Complainant’s prior registration and use of the disputed domain name prior to its opportunistic registration by the Respondent, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
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: September 24, 2019
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