The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
The Respondent is 冯泽宇 (Feng Ze Yu), 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 September 17, 2020. On September 17, 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. The Center sent an email communication to the Complainant on September 18, 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 22, 2020. On September 18, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 18, 2020, the Complainant confirmed its 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 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 16, 2020. The Center appointed Peter J. Dernbach as the sole panelist in this matter on November 5, 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 leading tire company in the world dedicated to designing and distributing tires, providing digital service, maps and guide and developing high-technology materials for mobility industry, with 114,000 employees, 69 tire manufacturing facilities serving in 117 countries. In addition, the Michelin Guide sold by the Complainant awarded stars for dining establishments from 1926. The Guide currently becomes a well-known restaurant ranking standard around the world. Since 1889, when the Complainant was founded, the Complainant promoted its business under the MICHELIN mark and trade name. The Complainant is the registered owner of the following trademarks: (1) MICHELIN, Chinese Trademark Registration No. 136402, registered on April 5, 1980. The Complainant and its trademarks have a strong reputation and are widely known all over the world, which has been recognized by previous UDRP panels in several cases. The Complainant promotes its activities among others under the domain name The Respondent is an individual in China, and the Disputed Domain Name The Complainant’s contentions could be summarized as follows: (i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Disputed Domain Name incorporates the MICHELIN trademark in its entirety, with an additional element “cheats”. The “cheats” element is a descriptive term and is therefore not able to create a sufficient distinction between the Disputed Domain Name and the Complainant’s trademark. The Disputed Domain Name (ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent was not authorized by the Complainant to use the Complainant’s MICHELIN trademark in any form, and was not commonly known by the Disputed Domain Name prior to the adoption and use by the Complainant of the MICHELIN trademark. Moreover, the Disputed Domain Name associates the Complainant’s MICHELIN trademark with the term “cheats”. Such a composition will mislead Internet users to the mistaken belief that the Disputed Domain Name is related to the Complainant. Additionally, the redirection of the Disputed Domain Name towards a webpage relating to adult content tarnishes the Complainant’s good name, by taking unfair advantage of the goodwill and reputation of the Complainant’s MICHELIN trademark. In the light of these circumstances, the Complainant asserts that the Respondent has no rights or legitimate interests in the Disputed Domain Name. (iii) The Disputed Domain Name was registered and is being used in bad faith. The Complainant’s MICHELIN trademark registrations predate the registration date of the Disputed Domain Name, and the MICHELIN trademark is well known worldwide. The Respondent clearly knew of the Complainant’s well-known MICHELIN trademarks as the Disputed Domain Name is so obviously connected with the MICHELIN trademark. The Disputed Domain Name redirects to a website displaying pornographic content for commercial gain by taking unfair advantage of the Complainant’s rights. Moreover, the Respondent failed to provide full contact information nor did it reply to the Complainant’s request that was forwarded by the Registrar. All aforementioned circumstances confirm that the Disputed Domain Name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Language of the Proceeding Paragraph 11(a) of the Rules provides that “[u]nless 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.” Paragraph 10(b) of the Rules provides that “[i]n all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case”; and paragraph 10(c) of the Rules provides that “[t]he Panel shall ensure that the administrative proceeding takes place with due expedition.” The Registration Agreement for the Disputed Domain Name is in Chinese. The Complainant requested that the language of the proceeding be English. The Respondent was given an opportunity to comment on the language of the proceeding and failed to do so. Given the following factors, the Panel decides that the language of the proceeding be English. (1) The Disputed Domain Name (2) The Complainant is not in a position to conduct the proceeding in Chinese without additional expense and delay due to the need for translation of the Complainant into Chinese. Hence, the use of Chinese in the proceeding would impose burden on the Complainant, which will be deemed in view of the cost for the present proceeding; (3) The Center sent an email communication to the Parties in both Chinese and English on September 18, 2020 inviting them to comment on the language of the proceeding. The Respondent was given an opportunity to comment on the language of the proceeding and failed to do so. The Center also formally notified the Respondent in both Chinese and English of the Complaint on September 25, 2020. However, the Respondent has chosen not to file a Response. Given these facts, the Panel is satisfied that the Respondent has been given an opportunity to participate and has chosen not to respond. Therefore, it would not be prejudicial to the Respondent in his abilities to articulate his arguments in Chinese or English in the administrative proceeding, whereas requiring the Complainant to translate the Complaint and all supporting materials into Chinese would cause unnecessary delay to the administrative proceeding. (Dolce & Gabbana S.r.l. v. Zhang Yali,WIPO Case No. D2013-1101). The Panel does not consider it prejudicial to the Respondent to adopt English as the language of the proceeding, and 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. 7. Discussion and Findings In accordance with paragraph 4(a) of the Policy, in order to succeed in this administrative proceeding and obtain the requested remedy (in this case, transfer of the Disputed Domain Name), the Complainant must prove that each of the three following elements are present: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; 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 Complainant alleges that the Disputed Domain Name The Complainant has established that it is the owner of trademarks MICHELIN. The Disputed Domain Name incorporates the Complainant’s MICHELIN trademark in its entirety and includes the additional “cheats” element. Additionally, the generic Top-Level Domain ("gTLD") “.com” is a standard registration requirement. Therefore, the addition of the “cheats” element and the extension “.com” do not prevent a finding of confusing similarity between the Disputed Domain Name and the Complainant’s trademarks. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.11.1 and 1.8. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademarks, and the condition of paragraph 4(a)(i) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that “[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service providers], in compliance with the Rules of Procedure, that […] (ii) [the respondent has] no rights or legitimate interest in respect of the [disputed] domain name[.]” Paragraph 4(c) of the Policy sets out the following several circumstances “[which], in particular but without limitation, if found by the Panel, shall demonstrate [the respondent’s] rights or legitimate interests to the [disputed] domain name for the purposes of Paragraph 4(a)(ii) [of the Policy]: (i) before any notice to [the respondent] of the dispute, [the respondent’s] use 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) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [the 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 the trademark or service mark at issue.” The Complainant has established that it is the owner of the MICHELIN trademarks, and that is has neither licensed nor authorized the Respondent to make any use of such trademarks or apply for registration of the Disputed Domain Name. There is no evidence indicating that the Respondent is commonly known by the Disputed Domain Name or the name of Michelin or similar. The Disputed Domain Name resolves to a website with pornographic content for commercial gain. The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. The burden of production thus shifts to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the Disputed Domain Name. The Respondent did not submit any allegation or evidence to support a finding that the Respondent has rights or legitimate interests in the Disputed Domain Name or that it is used in connection with a bona fide offering of goods or services or for legitimate noncommercial or fair use as demonstrated in paragraph 4(c) of the Policy. Having considered the above, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name, and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that “[a domain-name holder] is required to submit to a mandatory administrative proceeding in the event that [a complainant] asserts to the applicable [administrative-dispute-resolution service providers], in compliance with the Rules of Procedure, that […] (iii) [the respondent’s] domain name has been registered and is being used in bad faith.” Paragraph 4(b) of the Policy explicitly states, in relevant part, that “the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: […] “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location”. The Complainant’s MICHELIN trademarks have been registered in many countries around the world and the MICHELIN trademark is registered in China. Both of these registrations were made long prior to the registration of the Disputed Domain Name. The Respondent chose the “michelin” element as the distinctive part of the Disputed Domain Name. The Respondent has not submitted any allegation or evidence suggesting that the Respondent selected the “michelin” element with the additional term “cheats” for any reason other than the reputation of the Complainant’s trademarks. The Panel finds that the Disputed Domain Name has been registered in bad faith. The Disputed Domain Name resolves to a website, which displays pornographic content, and provides a link to download an app to watch pornographic movies, videos, and etc. There is no evidence in the record to support a finding that this use has been for any reason other than the intent to attract Internet users for commercial gain. The Panel finds that the Respondent’s use of the Disputed Domain Name attempts to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion. This use of the Disputed Domain Name is in bad faith. Having considered the above, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith, and thus the Complainant fulfills the condition provided in paragraph 4(a)(iii) of the Policy. 8. 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 Peter J. Dernbach
(2) MICHELIN, Chinese Trademark Registration No. 9156074, registered on February 14, 2013.
(3) MICHELIN, Chinese Trademark Registration No. 6167649, registered on January 7, 2010.
(4) MICHELIN, Chinese Trademark Registration No. 10574991, registered on June 7, 2013.
(5) MICHELIN, International Trademark Registration No. 771031, registered on June 11, 2001.
(6) MICHELIN, European Union Trade Mark Registration No. 009914731, registered on September 27, 2011.
Sole Panelist
Date: November 19, 2020
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