The Complainant is Arcelormittal (SA), Luxembourg, represented by Nameshield, France.
The Respondent is Lin Lin Wan (万琳琳), 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 21, 2020. On September 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 22, 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 25, 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 25, 2020. On September 25, 2020, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On September 25, 2020, the Complainant submitted the request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date. However, the Respondent sent an email communication to the Center on October 21, 2020 asking whether she could use Chinese. 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 proceeding commenced on October 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2020. On October 21 and 25, 2020, the Center received two email communications in English and Chinese from the Respondent. No formal Response was filed with the Center. On October 23, 2020, the Center informed the Parties it would proceed with panel appointment. The Center appointed Sebastian M.W. Hughes 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 A. Complainant The Complainant is a company incorporated in Luxembourg and one of the largest steel producers in the world, operating under the trade mark ARCELORMITTAL (the “Trade Mark”). The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including International registration No. 947686 with a registration date of August 3, 2007, designating China, among others. B. Respondent The Respondent is apparently an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on September 18, 2020. D. Use of the Disputed Domain Name At the date of filing of the Complaint, the disputed domain name did not resolve to an active website. At the date of this Decision, it resolved to a Chinese and English language “This domain is for sale” website (the “Website”). 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. In her email communications with the Center, the Respondent claimed: a) she registered the disputed domain name for her own business; b) the registration of the disputed domain name had nothing to do with the Complainant; and c) the Website did not compete with the Complainant, and asked whether she could use Chinese. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. 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 order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding. The Complainant has requested that the language of the proceeding be English, for the following reasons: (i) English is the language most widely used in international relations and is one of the working languages of the Center; (ii) The disputed domain name is formed by words in Roman characters (ASCII) and is not in Chinese script; (iii) 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. The use of Chinese in this case would therefore impose a burden on the Complainant which must be deemed significant in view of the low cost of this proceeding; and (v) The Complaint is written in English but the Center informed the Respondent in Chinese and afforded the Respondent the opportunity to file a response in Chinese. The Respondent asked in her email communications to the Center if she could use Chinese. 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. Although there is insufficient evidence before the Panel to support a firm conclusion that the Respondent is conversant in English, the Panel notes that the Respondent’s email communications were sent to the Center in both Chinese and English, and the Website contains English as well as Chinese texts. Equally, there is no evidence to support the conclusion that the Respondent is not conversant in English. The Respondent has chosen not to contest this proceeding, and all of the Center’s communications with the Parties have been sent in English and Chinese. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2. Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) together with the word “steel”, which is directly descriptive of the products produced and sold worldwide by the Complainant for many years under the Trade Mark. Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (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 trade mark 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 trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, there is no evidence that the disputed domain name has been used other than its recent offer for sale via the Website. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Given the notoriety of the Complainant and of its Trade Mark (including in China, where the Respondent is based); the close similarity between the disputed domain name and the Trade Mark (in particular, the addition of the term “steel” in the disputed domain name, which is related to the products produced and sold worldwide by the Complainant); the lack of any substantiated credible explanation from the Respondent; the passive holding of the disputed domain name, and the subsequent offer for sale of the disputed domain name via the Website on the date of this Decision, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time she registered the disputed domain name. The Respondent’s email communications if anything fortify this conclusion. For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. 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 Sebastian M.W. Hughes
Sole Panelist
Dated: November 23, 2020
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