The Complainant is Siemens AG, Germany, represented by Müller Fottner Steinecke Rechtsanwälte PartmbB, Germany.
The Respondent is 郑嵩 (zhengsong), 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 July 8, 2020. On July 8, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 9, 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 July 9, 2020 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 July 10, 2020. On July 9, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on July 10, 2020. 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 July 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 5, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 6, 2020. The Center appointed Kar Liang Soh as the sole Panelist in this matter on August 13, 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 technology company founded over 150 years ago and is active in many industries including medicine, automation and control, power, transportation, logistics, information and communication. The Complainant has been using the trademarks incorporating the word “Siemens” (the “SIEMENS Trademarks”) for a very long time. The SIEMENS Trademarks include trademarks containing words “Siemens Healthineers” used in relation to medical services, equipment and solutions (the “SIEMENS HEALTHINEERS Trademarks”). Examples of use of the SIEMENS Trademarks can be found on the Complainant’s websites at “www.siemens-healthineers.com”, “new.siemens.com/global/en.html”, and “new.siemens.com/cn/zh.html”. The SIEMENS Trademarks are registered worldwide. These include the following: Jurisdiction Trademark Trademark No. Registration Date International (designating China) SIEMENS 637074 March 31, 1995 International (designating China) 1357232 October 25, 2016 International Healthineers 1320512A March 10, 2016 The Disputed Domain Name was registered on July 2, 2020 and did not resolve to a website on or before the filing of the Complaint and at the time of this decision. The only details about the Respondent available in this proceeding is contained in the WhoIs information of the Disputed Domain Name, and appears to be an individual from Jiangsu province, China. 5. Parties’ Contentions A. Complainant The Complainant contends that: a) The Disputed Domain Name is identical or confusingly similar to the SIEMENS Trademarks and the SIEMENS HEALTHINEERS Trademarks. The SIEMENS Trademarks are well known. As such, the SIEMENS Trademarks and the SIEMENS HEALTHINEERS Trademarks are exclusively associated with the Complainant. The Disputed Domain Name contains the trademark SIEMENS and the misspelling “healthieers”, which is almost identical to “Healthineers” except for a missing letter “n”; b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not and has never been one of the Complainant’s representatives, employees or licensees, or is otherwise authorized to use the trademarks SIEMENS, HEALTHINEERS or SIEMENS HEALTHINEERS. The Complainant does not have any connection with the Respondent. The Respondent is currently not using the Disputed Domain Name and is not commonly known by the Disputed Domain Name; and c) The Disputed Domain Name was registered and is being used in bad faith. The Respondent intended to use the strong reputation of the SIEMENS Trademarks and SIEMENS HEALTHINEERS Trademarks in order to confuse the public and cause damage to the Complainant. The passive holding of the Disputed Domain Name amounts to use in bad faith. The misspelling of the Complainant’s SIEMENS HEALTHINEERS Trademarks constitutes registration and use in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding As the language of the Registration Agreement is Chinese, the default language of this proceeding is also Chinese. However, the Panel has the discretion to determine otherwise having regard to the circumstances under paragraph 11(a) of the Rules. In this case, the Complainant requests that English be adopted as the language of the proceeding instead. Having considered the circumstances, the Panel grants the Complainant’s request. In particular, the Panel is influenced by the following circumstances: a) The Complainant would be put to significant expenses and delays arising from having to undertake translations of documents in this proceeding into Chinese; b) Although the Center has sent case-related communications to the Parties in both English and China , the Respondent has chosen not to participate in the proceeding and has not objected to the Complainant’s request for English to be the language of the proceeding; and c) The Panel is bilingual in English and Chinese and is well equipped to manage the proceeding in either or both languages. 6.2 Substantive Issues To succeed in this proceeding, the Complainant must establish the three limbs of paragraph 4(a) of the Policy: a) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; b) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and c) The Disputed Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar In view of the evidence of trademark registrations presented in this proceeding, the Panel has no doubt that the Complainant has rights in the SIEMENS Trademarks, SIEMENS HEALTHINEERS Trademarks and the trademark HEALTHINEERS. The Disputed Domain Name clearly incorporates the SIEMENS Trademarks in their entirety. The Panel also finds the word “healthieers” in the Disputed Domain Name to be an obvious misspelling of the trademark HEALTHINEERS. Similarly, the entire Disputed Domain Name (disregarding the Top-Level Domain portion and the hyphen between “siemens” and “healthieers”) is an obvious misspelling of the SIEMENS HEALTHINEERS Trademarks. The omission of the single letter “n” in the word “healthineers” to derive the word “healthieers” and the hyphen in the Disputed Domain Name do not prevent a finding of confusing similarity. Therefore, the Panel holds that the Disputed Domain Name is confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests The Complainant has affirmed in the evidence that the Respondent is not and has never been one of the Complainant’s representatives, employees or licensees, or is otherwise authorized to use the trademarks SIEMENS, HEALTHINEERS or SIEMENS HEALTHINEERS. The Complainant has also asserted the lack of any connection with the Respondent. There is nothing in the evidence before the Panel to suggest that the Respondent is commonly known by the Disputed Domain Name or has any rights or legitimate interests in the Disputed Domain Name. There is also no evidence available to indicate that the Disputed Domain Name resolved to any active website which could otherwise give some hint to the interests of the Respondent. The Panel is accordingly satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name, thereby shifting the burden of production on the Respondent to show otherwise. Since the Respondent has not filed any Response, the Respondent has not discharged such burden and the prima facie case stands. The second limb of paragraph 4(a) of the Policy is therefore established. C. Registered and Used in Bad Faith The doctrine of passive holding has been applied by UDRP panels over the last two decades in relation to the domain names which do not resolve to any active website as in the present case. While the doctrine looks to the totality of circumstances, common factors are identifiable, including the reputation of the complainant’s trademark, the absence of a response by the respondent, the use of invalid contact details in breach of the registration agreement, and the implausibility of any good faith use of the domain name concerned. Having regard to the evidence submitted (including the long history of the Complainant and the SIEMENS Trademarks), the Panel accepts that the SIEMENS Trademarks are widely known and have the requisite reputation for purposes of the doctrine of passive holding. In view of this reputation, it is inconceivable that the Respondent could not have been aware of the SIEMENS Trademarks at the time of registering the Disputed Domain Name. The word “Healthineers” in the SIEMENS HEALTHINEERS Trademarks and the trademark HEALTHINEERS appears to be an invented word. The Panel has great difficulty imagining that the Respondent’s selection of “healthieers” as a component word in the Disputed Domain Name could have been unintentional or coincidental, divorced from any prior knowledge of the trademark HEALTHINEERS. In the absence of any cogent explanation, it would be extremely unlikely that the Respondent could have intended to use the Disputed Domain Name in good faith. It is noted that a Response has not been filed. The Panel is of the view that evidence of use of invalid contact details by a respondent is merely supportive of a finding of bad faith and is not an absolute prerequisite to such finding. The panel has the freedom to take into account all other factors to determine if bad faith registration and use arises from passive holding of a domain name. In an appropriate case such as the present, where the implausibility of unintentional or coincidental selection of the Disputed Domain Name incorporating a meaningless invented word is so striking, the Panel is satisfied that bad faith registration and use is established by the totality of the evidence before it. Therefore, the Panel holds that the requirements of the doctrine of passive holding have been sufficiently met by the factual circumstances of the case to establish bad faith registration and use of the Disputed Domain Name under the third limb of 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 Kar Liang Soh
Sole Panelist
Date: August 28, 2020
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