The Complainant is Sanofi, France, represented by Selarl Marchais & Associés, France.
The Respondent is 王克强 (Registrant of domain), 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 June 11, 2020. On June 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 12, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On June 12, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On June 16, 2020, the Complainant requested that English be the language of the proceeding. The Respondent did not comment. The Center verified that the 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 June 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 13, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 14, 2020. The Center appointed Karen Fong as the sole panelist in this matter on July 29, 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 a French multinational pharmaceutical company headquartered in Paris and ranks fourth in the world by prescription sales. Its consolidated net sales in 2018 was EUR 34.46 billion. The Complainant engages in research and development, manufacturing, and marketing of pharmaceutical products for sale, principally in the prescription market but also in over-the-counter medication. The Complainant was formed as Sanofi-Aventis in 2004 by a merger of Aventis and Sanofi-Synthelabo and changed its name to Sanofi in 2011. The Complainant has a presence in more than 100 countries on all five continents and employs over 100,000 people. The Complainant owns a portfolio of trade marks in different jurisdictions for the mark SANOFI. The earliest trade mark registration submitted in evidence is French trade mark registration No. 1482708 for SANOFI registered on August 11, 1988 (the “Trade Mark”). The Trade Mark has been recognized as a well-known trade mark by many UDRP Panels. The Complainant also owns many domain names which incorporate the Trade Mark including The Domain Name was registered on May 22, 2020. The Domain Name is connected to an inactive website. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is identical to the Trade Mark, that the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name was registered and is being used in bad faith. B. Language of Proceeding The Rules, paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese. The Complainant submits that the language of the proceeding should be English for the following reasons: - the Complainant’s business is conducted primarily in English and it is unable to communicate in Chinese; - the Domain Name is in Latin rather than Chinese characters which indicates that the Respondent is acquainted with the English language; and - the Complainant would be put to great expense and inconvenience to have to translate the Complaint and its evidence which would cause undue delay. 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. The Panel accepts the Complainant’s submissions regarding the language of the proceeding. The Respondent has not challenged the Complainant’s request and in fact has failed to file a Response. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In this case, the Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that all of the communications from the Center to the Parties were transmitted in both Chinese and English. In all the circumstances, the Panel determines that English be the language of the proceeding. C. Identical or Confusingly Similar The Panel is satisfied that the Complainant has established that it has registered and unregistered rights to the Trade Mark. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name. In this case, the Domain Name contains the Complainant’s distinctive Trade Mark in its entirety. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) which in this case is “.wang”. It is viewed as a standard registration requirement (section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. D. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in the disputed domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with relevant evidence of rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant. The Complainant contends that it has not authorised, licensed, or otherwise permitted the Respondent to use the Trade Mark in the Domain Name or for any other purpose. The Complainant is not aware of any evidence which demonstrates that the Respondent is commonly known by a name corresponding to the Domain Name. The Trade Mark is well known and has no other significance other than being obviously connected to the Complainant. The Respondent has not made any use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services, and is not making any legitimate noncommercial or fair use of the Domain Name. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has failed to respond and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name. In addition, the Panel notes the nature of the Domain Name which carries a high risk of implied affiliation with the Complainant (section 2.5.1 of the WIPO Overview 3.0). The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. E. Registered and Used in Bad Faith To succeed under the Policy, the Complainant must show that the Domain Name has been registered and used in bad faith. The Trade Mark is a distinctive and well-known trade mark and has been recognised by other UDRP panels as such. The Panel is satisfied that the Respondent must have been aware of the Complainant’s well-known trade mark when he/she registered the Domain Name given the fame of the Trade Mark. It is implausible that he/she was unaware of the Complainant when the Domain Name was registered. In the WIPO Overview 3.0, section 3.2.2 states as follows: “Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.” The fact that there is a clear absence of rights or legitimate interests coupled with the Respondent’s choice of the Domain Name is also a significant factor to consider (as stated in section 3.1.1 of WIPO Overview 3.0). The Domain Name falls into the category stated above and the Panel finds that registration is in bad faith. The Domain Name is also used in bad faith. The Domain Name directs to an inactive page. Section 3.3 of WIPO Overview 3.0 states that: “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. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.” In this case, the Trade Mark is well known and the Respondent has failed to file a Response. This is also a situation where in the absence of any arguments to the contrary, given the fame of the Trade Mark and the area of activity where it operates, it is implausible that there can be any good faith use to which the Domain Name may be put. Considering the circumstances, the Panel considers that the Domain Name is also being used in bad faith. Accordingly, the Complaint has satisfied the third element of the UDRP, i.e., the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) 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 Domain Name Karen Fong
Sole Panelist
Date: August 12, 2020
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