The Complainant is S.P.M.D., France, represented by Nameshield, France.
The Respondent is Cao Qin Ying (曹琴英), 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 September 16, 2020. On September 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 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 September 21, 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 September 21, 2020. On September 21, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 21, 2020, the Complainant submitted a request 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 September 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2020. The Center appointed Douglas Clark as the sole panelist in this matter on November 17, 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 was created in 1989 and operates under the name “Laboratoires Iprad” to develop health and wellness products for women. The Complainant states that it has sold 20 million products worldwide with revenue of EUR 79 million in 2018. The Complainant has registered the trademark FLORGYNAL for probiotic tampon products in France under trademark number 96652811 with a registration date of November 21, 1996. The disputed domain name The Complainant contends that: (a) The disputed domain name is confusingly similar to its trademark. The addition of the terms “tampon” and “.com” in the disputed domain name does not eliminate the overall notion that the designation is connected to the trademark and the likelihood of confusion that the disputed domain name and the trademark are associated; (b) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant in any way and the Complainant has never granted any authorization or license to use the Complainant’s trademark. The Respondent is not commonly known by the disputed domain name, and has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name; and (c) The disputed domain name was registered and is being used in bad faith. The expression “florgynal” has no meaning and the majority of results on web searches refer to the Complainant’s products. The association of the Complainant’s trademark and the word “tampon” is not coincidental, as it refers to the Complainant’s trademark branded products. The Respondent is using the disputed domain name to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant’s trademark. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issues – Language of the Proceeding According to paragraph 11(a) of the Rules, 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. In this case, the language of the Registration Agreement for the disputed domain name is in Chinese. Based on the given evidence, there is no agreement between the Complainant and Respondent regarding the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds: a) The English language is the language most widely used in international relations and is one of the working languages of the Center; b) The disputed domain name is formed by Roman characters (ASCII) and not in Chinese script; and c) In order to proceed in Chinese, the Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall cost of this proceeding. In accordance with paragraph 11(a) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances: - The Center has notified the Respondent of the proceeding in both English and Chinese. - The Respondent has not commented on the language of the proceeding nor has responded to the Complainant in any way. - An order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding. Further, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”. 6.2 Substantive Issues The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action: (i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights to; 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 The Panel finds that the disputed domain name The Panel notes that the Complainant does not rely on any registered trademarks for FLORGYNAL in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”)). The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Respondent has not asserted any rights or legitimate interests in relation to the disputed domain name. Section 2.1 of the WIPO Overview 3.0 provides: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” The Complainant has asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s FLORGYNAL trademark or to apply for registration of the disputed domain name. In addition, the Respondent has not responded to any of the Complainant’s contentions. The Panel finds that the Respondent has no rights or legitimate interests in regard to the disputed domain name. The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Based on the given evidence, the disputed domain name The disputed domain name was registered long after the Complainant has registered the FLORGYNAL trademark. The use of the Complainant’s FLORGYNAL trademark with the term “tampon” cannot be a coincidence. The FLORGYNAL trademark is used by the Complainant to brand its tampon products. The Panel is satisfied that the Respondent was aware of the Complainant and its FLORGYNAL trademark when he or she registered the disputed domain name. It appears to the Panel that the Respondent has registered the disputed domain name to attract Internet users to the website for commercial gain in accordance with paragraph 4(c)(iv) of the Policy. Though the disputed domain name resolves to an inactive website at the date of this decision, it is well established that the lack of use of the disputed domain name does not prevent a finding of bad faith under the doctrine of passive holding. (See section 3.3 of the WIPO Overview 3.0) In addition, the Complainant has provided evidence that the disputed domain name previously resolved to a login page for a lottery, which shows an intention to use the disputed domain name for commercial gain. For the above reasons, the Panel finds that the disputed domain name was registered and is used in bad faith. The Complainant has therefore satisfied the third element under 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 Douglas Clark
Sole Panelist
Date: December 3, 2020
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