Complainant is VKR Holding A/S, Denmark, internally represented.
Respondent is 王俊东 (wang jun dong), 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 March 5, 2020. On March 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 6, 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 Complainant on March 10, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint in English on March 10, 2020. On March 10, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant confirmed the request that English be the language of the proceeding on March 10, 2020. 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 Respondent in English and Chinese of the Complaint, and the proceedings commenced on March 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 12, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 14, 2020. The Center appointed Yijun Tian as the sole panelist in this matter on April 21, 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 A. Complainant Complainant, VKR Holding A/S, is a company incorporated in Denmark. Founded in 1941, Complainant is a leading designer and manufacturer of its Velux roof windows and other products. It has a presence in some 40 countries throughout the world, and sells in approximately 90 countries, including China. Complainant has registered a number of trademarks for VELUX in various jurisdictions, including trademark registrations in Denmark (since October 3, 1942, the trademark registration number VR 1942 00950), and trademark registrations in China (since January 14, 2014, the trademark registration number 11340015) (Annexes 4 and 5 to the Complaint). B. Respondent Respondent is 王俊东 (wang jun dong) is an individual located in China. Respondent registered the disputed domain name Complainant contends that the disputed domain name is confusingly similar to the VELUX marks. Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that the disputed domain name was registered and is being used in bad faith. Complainant requests that the disputed domain name Respondent did not reply to 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(a), in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons: (a) This is the most convenient for Complainant as Complainant and its representative do not read or write Chinese language. (b) Respondent has not sent a response to Complainant’s email and letter. It could have responded in Chinese. (c) Complainant also expects that Respondents will not respond to the Center with argumentation for the proceeding to continue in Chinese. Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. 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 other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the UDRP panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585). The Panel has taken into consideration the facts that Complainant is a company from Denmark, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters (“ravelux”), and is registered in the generic Top-Level Domain (“gTLD”) “com” space comprising of the Latin characters (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047). On the record, Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that Respondent is likely to have knowledge of English. In particular, the Panel notes that (a) the disputed domain name Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantial Issues Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that the disputed domain name should be transferred: (i) The disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. On the basis of the evidence introduced by Complainant and in particular with regards to the content of the relevant provisions of the Policy (paragraphs 4(a) - (c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the VELUX marks acquired through registration. The VELUX marks have been registered worldwide including registrations in Denmark and China. The disputed domain name Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). WIPO Overview 3.0 also provides “where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” (WIPO Overview 3.0, section 1.7) Further, in relation to the gTLD suffix, WIPO Overview 3.0 states: “The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11) Thus, the Panel finds that disregarding the prefix “ra”, as well as the gTLD suffix “.com”, the disputed domain name is otherwise identical to the VELUX marks. The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name: (i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain names, even if Respondent has acquired no trademark or service mark rights; or (iii) 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 Complainant’s trademarks. The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein). According to the Complaint, Complainant carried on business as a designer and manufacturer of its Velux roof windows and other products. It has a presence in some 40 countries throughout the world, and sells in approximately 90 countries, including China. Complainant has rights in the VELUX marks worldwide, including Denmark trademark registration since 1942, and the Chinese trademark registration since 2014, which long precede Respondent’s registration of the disputed domain name (in 2019). Moreover, Respondent is not an authorized dealer of VELUX-branded products or services. The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name: (a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the words “velux” in the disputed domain name and in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the VELUX marks or to apply for or use any domain name incorporating the VELUX mark, and Respondent has, through the use of a confusingly similar disputed domain name created a likelihood of confusion with the VELUX marks. (b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2019, long after the VELUX marks became internationally known. The disputed domain name is confusingly similar to Complainant’s VELUX marks. (c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, the Panel finds that the disputed domain name used to resolve to a website with pornographic content (Annex 6 to the Complaint), and it currently resolves to a website with access to video show platforms, some of which appear to be related to adult content.2 It seems that Respondent is making profits through the Internet traffic attracted to the website under the disputed domain name. (See BKS Bank AG v. Jianwei Guo,WIPO Case No. D2017-1041; BASF SE v. Hong Fu Chen, Chen Hong Fu,WIPO Case No. D2017-2203). The Panel finds that Respondent has failed to produce any evidence to rebut Complainant’s prima facie showing on Respondent’s lack of rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location. Registered in Bad Faith The Panel finds that Complainant has a widespread reputation in the VELUX mark with regard to its products. As mentioned above, Complainant has registered its VELUX mark internationally, including registration in China (since 2014) and in Denmark (since 1942). In addition, based on the information provided in the Complaint, Complainant has a global presence, including repute in the jurisdiction of China. Therefore, it is not conceivable that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2019). The Panel also finds that the VELUX mark is not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787). Thus, the Panel concludes that the disputed domain name was registered in bad faith. Used in Bad Faith Complainant also has adduced evidence to show that by using the confusingly similar disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location”. To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that such intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). As noted above, the disputed domain name has been used to attract Internet users seeking Complainant’s website to a website previously displaying pornographic content and currently displaying access to video show platforms (some of which appear to be related to adult content), presumably for commercial gain. Such conduct falls within the language of paragraph 4(b)(iv) of the Policy. Further, given the lack of response, the Panel cannot envision any other plausible use of the disputed domain name that would not be in bad faith under the present circumstances. Taking into account all the circumstances of this case, the Panel concludes that current use of the disputed domain name by Respondent is in bad faith also. In summary, Respondent, by choosing to register and use the disputed domain name, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith. The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision For all 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 Yijun Tian 1 See “www.ravelux.com”.
Sole Panelist
Dated: May 4, 2020
Full & Egal Universal Law Academy