The Complainant is Mistral International BV, Netherlands, represented by Inaday Merken BV, Netherlands.
The Respondent is Zhi Tian Lei, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2019. On August 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 4, 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 September 4, 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 in English on September 5, 2019.
On September 4, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on September 5, 2019. 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 September 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 3, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 9, 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 the Netherlands and the owner of the MISTRAL trade mark (the “Trade Mark”), used continuously since 1976 in respect of a wide range of watersports related goods, in particular those relating to windsurfing, and related clothing, footwear, headgear, eyewear and accessories.
The Complainant is the owner of several registrations in jurisdictions worldwide for or comprising the Trade Mark, including International registration No. 633,370 for the Trade Mark, registered since March 23, 1995; International registration No. 1,026,971 for the trade mark EQUIPE MISTRAL and device, registered since December 16, 2009; and International registration No. 1,027,081 for the trade mark MISTRAL EQUIPE, registered since December 16, 2009 (the “Trade Mark(s)”). B. Respondent
The Respondent is apparently an individual resident in China. C. The Disputed Domain Name
The disputed domain name was registered on April 1, 2019. D. The Website at the Disputed Domain Name
The disputed domain name has been used by the Respondent in respect of a Chinese language 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 the following reasons:
(i) The disputed domain name is registered in Latin characters instead of Chinese script;
(ii) The Complainant and its representative are not conversant with the Chinese language. This disadvantage will delay the proceeding and will cause high costs for translation of the Complaint and the Annexes; and
(iii) English is the most commonly used language in the world and is the primary language in which international commerce is conducted.
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 that the Respondent has chosen not to contest this proceeding; and that all of the Center’s communications with the Parties have been sent in English and Chinese language. The Panel is also 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 disputed domain name incorporates the entirety of the Trade Marks (see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)) and is identical to the EQUIPE MISTRAL Trade Mark (disregarding the generic Top-Level Domain (“gTLD”) “.net”).
The Panel therefore finds that the disputed domain name is confusingly similar or identical 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 Marks. 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
In light of the notoriety of the Trade Marks, and the evidence of the Respondent’s use of the Website in the manner described above, 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: October 23, 2019
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