The Complainant is Sodexo, France, represented by Aréopage, France.
The Respondent is Wang Bo, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2019. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 9, 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 10, 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 10, 2019. On September 10, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 10, 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 proceedings commenced on September 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 8, 2019. The Center appointed Matthew Kennedy as the sole panelist in this matter on October 22, 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 The Complainant is a French company specialized in food services and facilities management, with 460,000 employees in 72 countries, including China. The Complainant holds multiple trademark registrations, including international trademark registration number 964615 for a SODEXO device, registered on January 8, 2008, designating multiple jurisdictions, including China, and international trademark registration number 1240316 for SODEXO, registered on October 23, 2014, designating multiple jurisdictions. Both those trademarks registrations specify goods and services in classes 9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45, and both remain current. The Complainant also holds trademark registrations for SODEXHO, such as Chinese trademark registration number G694302, registered on June 22, 1998. The Respondent is an individual resident in China. The disputed domain name was registered on April 25, 2019. It redirects to a website for “payment services”. The site also displays pornographic content that is allegedly available for free for a limited time. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s SODEXHO and SODEXO trademarks. The addition of the descriptive words “saldo” and “online” in the disputed domain name is not sufficient to distinguish it from the Complainant’s marks. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent does not have any affiliation, association, sponsorship or connection with the Complainant and has not been authorized, licensed or otherwise permitted by the Complainant or by any subsidiary or affiliated company to register the disputed domain name or to use it. The disputed domain name was registered and is being used in bad faith. Due to the well-known character and reputation of the mark SODEXO / SODEXHO, particularly in China, the Respondent most likely knew of its existence when he registered the disputed domain name. The Respondent is using the disputed domain name to divert Internet traffic to a pornographic website. This is an intentional attempt to attract, for commercial gain, Internet users to the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding Paragraph 11(a) of the Rules provides 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”. The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese. The Complainant requests that the language of the proceeding be English. Its main arguments are that the Complainant does not understand Chinese and the website to which the disputed domain name resolves includes some English words. The Respondent did not comment on the language of the proceeding. Paragraphs 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding takes place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293. The Panel notes that in the present proceeding the Complaint was filed in English. Despite the Center having sent a communication regarding the language of the proceeding and written notice of the Complaint in English and Chinese to the Respondent’s contact addresses, the Respondent did not express any interest in responding to the Complaint or otherwise participating in this proceeding. In these circumstances, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay, whereas selecting English as the language of the proceeding will not unfairly prejudice either Party. Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese but none was filed. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements: the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and 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. A. Identical or Confusingly Similar Based on the evidence presented, the Panel finds that the Complainant has rights in the SODEXO mark. The disputed domain name wholly incorporates the SODEXO mark as its initial element. The disputed domain name also includes the words “saldo” (meaning “account balance” in Spanish) and “online”. As mere dictionary words, these do not dispel confusing similarity between the disputed domain name and the Complainant’s trademark. See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110. The SODEXO trademark remains clearly recognizable within the disputed domain name. The disputed domain name also includes the generic Top-Level Domain (“gTLD”) suffix “.com”. As a mere technical requirement of registration, a gTLD suffix is disregarded in the comparison between a disputed domain name and a trademark for the purposes of the first element of the Policy unless it has some impact beyond its technical function, which is not the case here. Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (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 trademark 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 trademark or service mark at issue. As regards the first circumstance set out above, the disputed domain name, which is confusingly similar to the Complainant’s SODEXO mark, redirects to a website that offers payment services. The Complainant submits that the Respondent does not have any affiliation, association, sponsorship or connection with the Complainant and has not been authorized, licensed or otherwise permitted by the Complainant or by any subsidiary or affiliated company to register the disputed domain name or to use it. Therefore, the Panel does not find this to be a use of the disputed domain name in connection with a bona fide offering of goods or services within the circumstances of paragraph 4(c)(i) of the Policy. As regards the second circumstance, the Respondent’s name is listed in the Registrar’s WhoIs database as “Wang Bo”, not the disputed domain name. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by paragraph 4(c)(ii) of the Policy. As regards the third circumstance, the disputed domain name redirects to a website offering payment services and pornographic content. That is not a legitimate noncommercial or fair use of the disputed domain name within the circumstances of paragraph 4(c)(iii) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut that prima facie case because he did not respond to the Complaint. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith. The fourth of these is as follows: (iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] website or location. With respect to registration, the disputed domain name was only registered in 2019, years after the registration of the Complainant’s SODEXO trademarks, including in China where the Respondent is located. The Complainant has also made extensive use of its SODEXO trademark in China in connection with its food service and facilities management services. The disputed domain name wholly incorporates the SODEXO trademark as its initial element. SODEXO is a coined term with no other meaning. This all gives the Panel reason to infer that the Respondent was aware of the Complainant and its trademarks at the time of registration of the disputed domain name earlier this year. The Panel finds that the Respondent deliberately chose to register the Complainant’s SODEXO trademark in the disputed domain name in bad faith. With respect to use, the Respondent uses the disputed domain name, which is confusingly similar to the Complainant’s SODEXO trademark, to redirect to a website offering for sale payment services and pornographic content. That use is either for the commercial gain of the Respondent or the operator of that other website, or both. In each scenario, the use is for commercial gain. Nothing in the website content indicates any reason to use the disputed domain name other than to confuse consumers into believing that it has some connection to the Complainant. The Panel finds that the Respondent is using the disputed domain name intentionally to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a service on the Respondent’s website, within the terms of paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in 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 Matthew Kennedy
Sole Panelist
Date: November 4, 2019
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