Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America (“US”).
Respondent is 石磊 (Lei Shi), China. 2. The Domain Names and Registrars
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2020. On June 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 17, 2020, Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 19, 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 June 22, 2020. On June 19, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant requested that English be the language of the proceeding on June 22, 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 of the Complaint, and the proceedings commenced on June 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 16, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 17, 2020. The Center appointed Yijun Tian as the sole panelist in this matter on August 3, 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, Accenture Global Services Limited, is a company incorporated in the Ireland. Complainant is a world leading company that provides services and solutions in strategy, consulting, technology, and operations, under the trademark ACCENTURE. Complainant has offices in more than 200 cities in 56 countries. Complainant has exclusive rights in ACCENTURE, and ACCENTURE related marks (hereinafter “ACCENTURE marks”). Complainant is the exclusive owner of several ACCENTURE marks worldwide across more than 140 countries, such as an Indian trademark registration for ACCENTURE filed on October 30, 2000 and registered on July 28, 2003 (Indian trademark registration number 967046); and a European Union trademark registration for ACCENTURE registered on August 14, 2002 (European Union Trade Mark registration number 001958370), and a US trademark registration for ACCENTURE registered on December 24, 2002 (the US trademark registration number 2665373). Complainant also owns and operates domain names which contains the ACCENTURE mark in its entirety, such as Respondent is 石磊 (Lei Shi), China. The disputed domain names Complainant contends that the disputed domain names are confusingly similar to the ACCENTURE marks. Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain names. Complainant contends that the disputed domain names were registered and are being used in bad faith. Complainant requests that the disputed domain names be transferred to it. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreements for the disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, 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: (1) The disputed domain names were redirected to hosted websites that promote other sponsored click-through links and websites, which are all displayed in English; (2) Respondent has registered disputed domain names that are nearly identical to Complainant’s English-language company name and trademark, i.e., Accenture (an Irish company); (3) There is no equivalent Chinese (or other foreign language) translation of the disputed domain names, including the English language “.com” generic Top-Level Domain (“gTLD”); (4) Allowing the dispute to proceed in Chinese would arguably give Respondent an advantage by forcing Complainant to incur additional costs and expenses in seeking local assistance in China for handling the dispute related to the disputed domain names that are comprised of an English language trade mark. Furthermore, 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 its 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, UDRP 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 Ireland, 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 names includes Latin characters and particularly English terms “my” and “holding” (Compagnie Gervais Danone v. Xiaole Zhang,WIPO Case No. D2008-1047). On the record, Respondent appears to be located in China 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 sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain names are registered in Latin characters particularly English words (e.g. “my” and “holding”), rather than Chinese script; (b) the gTLD of the disputed domain names are “.com”, so the disputed domain names seem to be prepared for users worldwide; (c) the disputed domain names are redirected to websites in English; (d) the Center has notified Respondent of the proceeding in both Chinese and English, and Respondent has indicated no objection to Complainant’s request that English be the language of the proceeding; (e) the Panel also notes that the Center informed Respondent that it would accept a response in either English or Chinese; and (f) Respondent did not object to the use of English as the language of the proceeding. 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 its 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. Substantive Issues Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or 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 regard 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 ACCENTURE marks acquired through registration. The ACCENTURE marks have been registered internationally, including an Indian trademark registration for ACCENTURE registered since 2003, a US trademark registration for ACCENTURE registered since 2002, and a European Union Trade Mark registration for ACCENTURE registered since 2002. In relation to the disputed domain name In relation to the disputed domain name Previous UDRP panels have consistently held that a domain name may be 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). Moreover, as to “typosquatting”, section 1.9 of WIPO Overview 3.0 states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” As the essential part of the disputed domain name Thus, the Panel finds that the one letter typographical error of Complainant’s ACCENTURE marks is not sufficient to negate the confusing similarity between the disputed domain name Further, in relation to the gTLD suffix, WIPO Overview 3.0 further 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) The Panel therefore holds that the disputed domain names are confusing similarity with the ACCENTURE marks, and 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 name, 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 panel 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 the 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). According to the Complaint, Complainant is a world leading company that provides services and solutions in strategy, consulting, technology, and operations, under the trademark ACCENTURE. Complainant has offices in more than 200 cities in 56 countries. Complainant has rights in the ACCENTURE mark, including in India, the US, and in the European Union, which long precede Respondent’s registration of the disputed domain names. Moreover, Respondent is not an authorized dealer of ACCENTURE-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 names: (i) There has been no evidence adduced to show that Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the term “accenture” or “acenture” in its business operations. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the ACCENTURE marks or to apply for or use any domain name incorporating the ACCENTURE marks. (ii) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain names. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain names. Respondent registered the disputed domain names in 2020, long after the ACCENTURE marks became internationally known. The disputed domain names are identical or confusingly similar to Complainant’s ACCENTURE marks. (iii) 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 websites, currently resolved by the disputed domain names, are redirected websites offering links to third parties’ websites. It seems that Respondent is making profits through the Internet traffic attracted to the website under the disputed domain names. (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 names. 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. Upon the evidence of the circumstances in this case, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith. a) Registered in Bad Faith The Panel finds that Complainant has a widespread reputation in the ACCENTURE marks with regard to its products and services. Complainant is a world leading company that provides services and solutions in strategy, consulting, technology, and operations, and Complainant has offices in more than 200 cities in 56 countries. Complainant has registered its ACCENTURE marks internationally, including trademark registrations in India (since 2003), in the US (since 2002), and in the European Union (since 2002). 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 names (in 2020). The Panel therefore finds that the ACCENTURE 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 UDRP 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 names were registered in bad faith. b) Used in Bad Faith Complainant also has adduced evidence to show that by using the disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites 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 intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra.). Given the widespread reputation of the ACCENTURE marks and the confusing similar disputed domain names, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with Complainant, contrary to fact. Through using redirection schemes on the websites at the disputed domain names, Respondent is likely to have made commercial gain by “freeriding” on the reputation of Complainant and its trademarks, which is indicative of Respondent’s bad faith use of the disputed domain names. Moreover, Respondent has not responded to the Complaint. The Panel therefore concludes that the disputed domain names were registered and are being used by Respondent in bad faith. In summary, Respondent, by choosing to register and use domain names which are confusingly similar to Complainant’s trademark, 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 names and the conduct of Respondent as far as the websites to which the disputed domain names resolve are indicative of registration and use of the disputed domain names 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 names, Yijun Tian
Sole Panelist
Dated: August 19, 2020
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