The Complainant is Arcelormittal (SA), Luxembourg, represented by Nameshield, France.
The Respondent is Richard Hajdu, Kasz-Han, Netherlands. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2020. On October 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 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 October 12, 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 and an email regarding the language of proceedings on October 12, 2020. The Center verified that the Complaint 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 of the Complaint, and the proceedings commenced on November 6, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 26, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 4, 2020. The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on December 16, 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, ArcelorMittal S.A., is the largest steel production company in the world and is the market leader in steel for use in automotive, construction, household appliances, and packaging with 89.9 million tonnes crude steel made in 2019. The Complainant is the holder of the following trademark: ARCELORMITTAL, International word mark registered under No. 947686 on August 3, 2007, in classes 6, 7, 9, 12, 19, 21, 39, 40, 41, and 42. The Complainant also owns the domain name The Disputed Domain Name was registered on October 2, 2020, and is currently referring to a registrar parking page. 5. Parties’ Contentions A. Complainant The Complainant considers the Disputed Domain Name to be confusingly similar to a trademark in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, the Respondent has not used the Disputed Domain Name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the Disputed Domain Name and is in no way affiliated with the Complainant. Finally, the Complainant claims that the Disputed Domain Name was registered and is being used in bad faith. According to the Complainant, the Respondent could not be unaware of the Complainant’s trademark and reputation when registering the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Procedural Issue: Language of proceedings 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, subject to the authority of the Panel to determine otherwise. According to information received from the concerned registrar, the language of the registration agreement for the Disputed Domain Name is Dutch. The Complaint has been submitted in English. UDRP panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include: - evidence showing that the respondent can understand the language of the complaint; - potential unfairness or unwarranted delay in ordering the complainant to translate the complaint; - other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement. On UDRP panel appointment, both parties’ arguments are provided to the UDRP panel for its determination as to the language of proceeding. This may include accepting the complaint as filed, and a response in the language of the registration agreement, thereby seeking to give both parties a fair opportunity to present their case (see section 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In the present case, the Complainant requests that English be the language of the proceedings, as translating the Complaint into Dutch would require specialized translation services and therefore impose a significant burden on the Complainant. The Panel observes that the Respondent was made aware of the present proceedings with a Dutch communication from the Center and did not reply. By accepting the terms and conditions of the registration agreement in Dutch and by the Center’s communication, the Respondent was sufficiently informed about the content of these administrative proceedings. The fact that the Respondent did not reply to any of the communications sent by the Center indicates that the Respondent deliberately opted for not taking part in the proceedings and chose not to use its right to defend itself. In such circumstances, the Panel finds that it would be a disadvantage for the Complainant to be forced to translate the Complaint. As the Respondent had ample chance to defend itself but elected not to do so, the rights of the Respondent to defend itself and the right to equal treatment are guaranteed (see INTS IT IS NOT THE SAME, GmbH (dba DESIGUAL) v. Two B Seller, Estelle Belouzard,WIPO Case No. D2011-1978). For these reasons and given the circumstances of this case as further explained below, the Panel determines that the language of the proceedings is English. 6.2 Substantive elements of the Policy Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. The onus is on the Complainant to make out his case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the Disputed Domain Name. As the UDRP proceedings are administrative, the standard of proof is the balance of probabilities. Thus, for the Complainant to succeed he must prove, within the meaning of paragraph 4(a) of the Policy, that: (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. The Panel will therefore deal with each of these requirements. A. Identical or Confusingly Similar To prove this element, the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has clearly established that there are trademarks in which it has rights. The Complainant’s ARCELORMITTAL trademark has been registered and used in various countries in connection to its steel production business. The Disputed Domain Name is identical to the Complainant’s trademark. It is well established that the generic Top-Level Domain (“gTLD”), here “.ceo”, may be disregarded when considering whether the Disputed Domain Name is confusingly similar to a trademark in which the Complainant has rights. In light of the above, the Panel considers the Disputed Domain Name to be identical to the Complainant’s ARCELORMITTAL trademark. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. As established by previous UDRP panels, it is sufficient for the Complainant to make a prima facie showing that the Respondent has no rights or legitimate interests in the Disputed Domain Name in order to place the burden of production on the Respondent (see section 2.1 of the WIPO Overview 3.0). The Panel notes that the Respondent has not apparently been commonly known by the Disputed Domain Name and that the Respondent does not seem to have acquired trademark or service mark rights. According to the information provided by the Registrar, the Respondent is “Richard Hajdu, Kasz-Han”. The Respondent’s use and registration of the Disputed Domain Name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent exists or existed. Where a domain name is identical to a complainant’s trademark, UDRP panels have largely held that it carries a high risk of implied affiliation (see section 2.5.1 of the WIPO Overview 3.0). The Disputed Domain Name incorporates the Complainant’s ARCELORMITTAL trademark in its entirety without any addition. Moreover, in the Panel’s view, the fact that the Disputed Domain Name has been registered under the “.ceo” gTLD may even increase confusion among Internet users by referring to the Complainant’s CEO. Therefore, the Panel finds that the Disputed Domain Name cannot constitute bona fide or even fair use. Beyond looking at the domain name, UDRP panels assess whether the overall facts and circumstances of the case, such as the content of the website linked to the disputed domain name and the absence of a response, support a fair use or not (see sections 2.5.2 and 2.5.3 of the WIPO Overview 3.0). The Panel finds no signs of a legitimate noncommercial or fair use of the Disputed Domain Name, as it appears to be inactive. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted. Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In light of the above, the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith The Complainant must prove on the balance of probabilities both that the Disputed Domain Name was registered in bad faith and that it is being used in bad faith (see section 4.2 of the WIPO Overview 3.0 and, for example, Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052). Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith registration and use is the use of a domain name to intentionally attempt to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. In the present case, the Panel finds that it is inconceivable that the Respondent was unaware of the Complainant and its trademark rights when it registered the Disputed Domain Name. The Disputed Domain Name is identical to the Complainant’s distinctive trademark, the reputation of which has been acknowledged by numerous UDRP panels (see e.g., Arcelormittal (SA) v. Whois Privacy Protection Foundation / Lawrence Andrew,WIPO Case No. D2019-1538). In the Panel’s view, the Respondent’s awareness of the Complainant’s trademark rights at the time of registration suggests bad faith (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209; BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007). The Panel observes that the Disputed Domain Name refers to a registrar parking page stating that the website is unavailable, and therefore appears to be inactive. The passive holding of a domain name may amount to bad faith when it is difficult to imagine any plausible future active use of a domain name by the respondent that would be legitimate and would not interfere with the complainant’s well-known mark (see Inter-IKEA v. Polanski,WIPO Case No. D2000-1614; Inter-IKEA Systems B.V. v. Hoon Huh,WIPO Case No. D2000-0438; Telstra Corporation Limited v. Nuclear Marshmallows, supra). Additional factors to support a finding of bad faith in relation to the passive holding of a domain name include the degree of distinctiveness or reputation of the Complainant’s mark and the failure of the Respondent to submit a response or to provide any evidence of actual or contemplated good-faith use (see section 3.3 of WIPO Overview 3.0). In the present case, the Panel finds that the Complainant has sufficiently proven the reputation of its ARCELORMITTAL trademark. In the Panel’s view, the use of the ARCELORMITTAL mark without any addition under the “.ceo” gTLD makes it difficult to conceive any plausible legitimate use of the Disputed Domain Name by the Respondent. By failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate. Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the Disputed Domain Name was registered and is being used in bad faith. In light of the above, the Complainant also succeeds on the third and last element 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 Flip Jan Claude Petillion
Sole Panelist
Date: January 12, 2021
Full & Egal Universal Law Academy