The Complainant is Amundi Asset Management, France, represented by Nameshield, France.
The Respondent is 唐晓鸣 (tang xiao ming), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2019. On November 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 11, 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 November 12, 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 November 12, 2019. On November 12, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on November 12, 2019. The Respondent did not comment on the language of the proceeding within the specified due date on November 21, 2019, the Respondent indicated that his English was not good. 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 proceedings commenced on November 22, 2019. In accordance with the Rules, paragraph 5, the due date for the Response was December 12, 2019. The Respondent sent emails to the Center on November 11, 2019, November 15, 2019, November 21, 2019, November 27, 2019, November 29, 2019 and December 6, 2019. The Respondent submitted his Response on December 7, 2019. Accordingly, the Center proceeded with the Panel Appointment on December 19, 2019. Another email was received from the Respondent on the same day. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on December 27, 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 asset management company, and has offices in 37 countries throughout Europe, Asia-Pacific, the Middle-East and the Americas. The Complainant provides evidence that it manages approximately EUR 1.4 billion in assets and ranks among the top 10 of global asset management companies. The Complainant owns a registered trademark protecting the mark AMUNDI, i.e.,international trademark registration number 1024160, registered on September 24, 2009, and designating, amongst other jurisdictions, the Respondent’s home jurisdiction China. The Complainant also owns official domain names incorporating its trademark, such as The Respondent is an individual based in China. The disputed domain name was registered on October 26, 2019. The disputed domain name directs to an inactive webpage. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for AMUNDI, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith, through the doctrine of passive holding. The Complainant claims that its trademarks are distinctive, well known and used intensively, and that there are no justifications for the use of its trademarks in the disputed domain name. The Complainant refers to previous UDRP decisions which state that its trademark for AMUNDI is well known, see for instance Amundi Asset Management v. Whois Privacy Protection Foundation / daniel, clark,WIPO Case No. D2019-1335. The Complainant contends that the disputed domain name is currently not used and held passively by the Respondent, and essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent submitted a Response in Chinese on December 7, 2019. In its Response, the Respondent essentially contends that he registered the disputed domain name through regular means, that he uses the disputed domain name legally and for merely personal use, that he is not a competitor of the Complainant, and does not intend to mislead the public for commercial gain. The Respondent requests to settle the dispute with the Complainant. However, the Complainant did not respond to the Center’s possible settlement email of December 13, 2019. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding Pursuant to paragraph 11(a) of the Rules, 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 Complainant states that the Registration Agreement is in Chinese but nevertheless submitted its Complaint and amended Complaint in English, and requests that the language of the proceeding be English. The Respondent did not comment on the language of the proceeding within the specified due date. Later on, the Respondent indicated that his English was not good. Given the circumstances of this case, the Center accepted the Complaint as filed in English, accepted the Response as filed in Chinese, and appointed the present Panel, which is familiar with both English and Chinese. In considering the Complainant’s request that the language of the proceeding be English, the Panel has carefully considered all elements of this case, in particular, the Complainant's request that the language of the proceeding be English; the fact that the Respondent sent a bilingual email in both Chinese and English on November 21, 2019, from which the Panel deducts that the Respondent may understand and communicate in English; and the fact that Chinese as the language of the proceeding could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English. In accordance with WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1, the Panel accepts the Complaint filed in English and the Response filed in Chinese, does not require a translation of the Complaint nor the Response, and proceed to render its decision in English. 6.2. Discussion and Findings on the merits The Policy requires the Complainant to prove three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. Based on the evidence and arguments submitted, the Panel's findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the mark AMUNDI based on its registration and use of the same as a trademark. Moreover, as to confusing similarity, the disputed domain name is composed of the Complainant’s registered trademark AMUNDI, and the word “china”. The Panel refers to the WIPO Overview 3.0, section 1.8, which provides: “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. The Panel finds that the geographical term “china” does not distinguish the disputed domain name from the Complainant’s trademark, which is reproduced in its entirety in the disputed domain name, and concludes that the disputed domain name is confusingly similar to the Complainant’s trademarks. The Complainant has therefore satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests The Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). The Respondent states in its Response, in general terms and without providing any evidence, that he uses the disputed domain name legally and for merely personal use. The Panel notes that the disputed domain name does not direct to an active webpage, and concludes that the absence of use, or unsubstantiated claims as to future use, do not confer any rights or legitimate interests in the disputed domain name on the Respondent. The Respondent furthermore states in his Response that he registered the disputed domain name through regular means and that he is not a competitor of the Complainant. The Panel holds that the mere registration of a domain name, and the (unsubstantiated) absence of competition between the Respondent and the Complainant does not confer rights or legitimate interests in the disputed domain name on the Respondent. The Panel therefore rejects these arguments. Furthermore, the Panel notes that the nature of the disputed domain name, being confusingly similar to the Complainant’s trademarks, carries a high risk of implied affiliation with the Complainant (see also WIPO Overview 3.0, section 2.5.1), and that the Respondent is not commonly known by the disputed domain name. On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The Panel finds that the Complainant has provided sufficient evidence that its trademarks are well known and enjoy a strong reputation, including in the Respondent’s home jurisdiction, China. The registration of the disputed domain name, which is confusingly similar to the Complainant’s trademarks, and which took place years after the first registration and use by the Complainant’s of its trademark for AMUNDI, is therefore clearly intended to profit from, or exploit the Complainant’s trademarks by creating a false impression of association with the Complainant. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns a trademark in AMUNDI and uses it extensively. In the Panel’s view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith. As to use of the disputed domain name in bad faith, the disputed domain name links to an inactive website. In this regard, the WIPO Overview 3.0, section 3.3 provides: “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”. Having regard to all elements of the case at hand, and in particular to the fact that the disputed domain name is confusingly similar to the Complainant’s well-known trademark, the high degree of distinctiveness of the Complainant’s trademark, and the particular choice of the disputed domain name, which clearly suggests a false association between the Complainant and the Respondent (i.e. the disputed domain name being the specific domain name for the Complainant’s activities in China), the Panel rules that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith. Finally, the Respondent has failed to provide any evidence, other than its mere unsubstantiated claims, to establish his good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under 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 Deanna Wong Wai Man
Sole Panelist
Date: January 10, 2020
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