The Complainant is VKR Holding A/S, Denmark, internally represented.
The Respondent is 甄晶鑫 (jing xin zhen), 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 February 14, 2020. 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 February 16, 2020, 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 February 25, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center also transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. On February 26, 2020, the Complainant filed an amended Complaint in English and requested 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 March 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 25, 2020. The Center appointed Matthew Kennedy as the sole panelist in this matter on April 8, 2020. 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 the holding company of the Velux Group, a manufacturer of roof windows and accessories that has manufacturing and sales operations in more than 40 countries. The evidence on record shows that the Complainant sponsors the Velux EFH Champions League handball tournament. The Complainant holds trademark registrations incorporating VELUX in multiple jurisdictions, including Chinese trademark registration number 11340015 for a semi-figurative mark containing the word VELUX, claimed in red, registered on January 14, 2014 and specifying goods in class 19. That trademark registration remains current. The Respondent is an individual resident in China. The disputed domain name was registered on December 12, 2019. It resolves to a webpage in Chinese displaying advertising for gambling and pornography websites. The Complainant sent a cease and desist letter regarding the disputed domain name to the email address displayed on the webpage associated with the disputed domain name on January 6, 2020, and received an automatic reply the following day. The reply consisted of three domain names. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s VELUX trademark. The distinctive element of the disputed domain name is the word “vellux” which is similar to VELUX. The addition of the letters “x”, “m” and “m” does not detract, nor sufficiently distinguish, the disputed domain name from the trademark. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent registered the disputed domain name without the knowledge or permission of the Complainant. The Respondent’s webpage displays inappropriate content. The VELUX trademark is very distinctive and the Complainant believes that its rights were known to the Respondent before the registration of the disputed domain name. This is not a fair or noncommercial use. The disputed domain name has been registered and is being used in bad faith. By using the disputed domain name, the Respondent attempts to attract, for commercial gain, Internet users to its website. This is achieved by creating a likelihood of confusion with the Complainant’s mark and effectively hijacking part of the Complainant’s natural traffic to generate additional revenue for the Respondent. No other basis for the selection of the disputed domain name can be inferred from the circumstances on the record, except that the Respondent seeks to attract potential customers for commercial gain to his website by means of initial confusion. 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 arguments are that (1) English is the most convenient language for the Complainant; (2)the Respondent did not send a proper response to the Complainant’s email and letter, so the Complainant expects that the Respondent will not respond to the Center’s email with argumentation for the proceeding to continue in Chinese. Paragraph 10(b) and (c) of the Rules requires 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 take 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 observes that in this proceeding the Complaint was filed in English. The Respondent has not commented on the language of the proceeding, filed a Response or expressed any interest in otherwise participating in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay, whereas proceeding in English will not cause unfairness to 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 but that it will accept all documents as filed without requiring a translation. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (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. A. Identical or Confusingly Similar Based on the evidence presented, the Panel finds that the Complainant has rights in the VELUX The disputed domain name incorporates all the non-figurative elements of the Complainant’s trademark. For technical reasons, the disputed domain name cannot include the figurative elements of that trademark, hence these other elements can be disregarded in the comparison between the disputed domain name and the mark. See Sweeps Vacuum & Repair Center, Inc. v. Nett Corp.,WIPO Case No. D2001-0031. The disputed domain name also includes the letters “xmm” as its initial element and an additional “l” after the “l” in the mark. However, on a side-by-side comparison, the non-figurative elements of the VELUX mark remain clearly recognizable in the disputed domain name. Accordingly, these additional elements in the disputed domain name do not prevent a finding of confusing similarity between it and the Complainant’s trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The disputed domain name also includes a generic Top-Level Domain (“gTLD”) suffix, i.e., “.com”. As a technical requirement of domain name registration, a gTLD suffix is disregarded in the comparison between a domain name and a trademark for the purposes of the first element of paragraph 4(a) 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. The disputed domain name, which is confusingly similar to the Complainant’s VELUX trademark, resolves to a webpage displaying advertising for gambling and pornography websites. The Complainant states that the Respondent registered the disputed domain name without the knowledge or permission of the Complainant. The Panel does not find this use to be a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. The Respondent’s name is listed in the Registrar’s WhoIs database as “甄晶鑫 (jing xin zhen)”, not “xxmvellux”. There is no evidence that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. The disputed domain name resolves to a webpage displaying advertising for gambling and pornography websites, which either operates for the commercial gain of the Respondent or the operators of the advertised websites, or both. In any such scenario, this is not a legitimate noncommercial or fair use of the disputed domain name within the meaning 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, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance 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] website 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] website or location or of a product or service on [the respondent’s] website or location.” The Respondent registered the disputed domain name in 2019, long after the Complainant obtained its trademark registrations, including in China, where the Respondent is resident. The disputed domain name incorporates the non-figurative elements of the Complainant’s VELUX mark, addingthe letters “xmm” before the mark and an additional “l” after the “l” in the mark. The disputed domain name is not a dictionary word. Nothing on the associated webpage indicates any meaning that the disputed domain name might have other than as an approximation of the Complainant’s VELUX mark. The Respondent had the opportunity to become aware of the Complainant’s mark prior to the registration of the disputed domain name via the Internet, if not offline, including through the Complainant’s sport sponsorship. Therefore, based on the record of this proceeding, the Panel considers the most plausible explanation for the Respondent’s choice of the disputed domain name to be that he was aware of the Complainant’s VELUX mark and registered the disputed domain name in bad faith. The Respondent currently uses the disputed domain name in connection with a webpage that displays advertising for gambling and pornography websites. This use is for the commercial gain of the Respondent or the operators of the advertised websites, or both. Given all the facts, the Panel considers that the Respondent’s use of the disputed domain name intentionally attempts to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of a product or service on that website. 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
semi-figurative mark (the “VELUX mark”).
Sole Panelist
Date: April 11, 2020
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