The Complainant is Accenture Global Services Limited, Ireland, represented by McDermott Will & Emery LLP, United States of America (“United States”).
The Respondent is 王兵 (Wangbing), 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 October 29, 2020. On October 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 30, 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 November 29, 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 December 2, 2020. On November 29, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On December 2, 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 proceeding commenced on December 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 3, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2021. On January 11, 2021, the Respondent submitted a late Response. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 3, 2021. 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 Ireland, and is the owner of numerous registrations in jurisdictions around the world for the trade mark ACCENTURE (the “Trade Mark”), including United States trade mark registration number 3,091,811, with a registration date of May 16, 2006. The Complainant has been using the Trade Mark internationally since 2001 in connection with a wide range of management consulting, technology and outsourcing services. B. Respondent The Respondent is an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on September 15, 2020. D. Use of the Disputed Domain Name The disputed domain name does not resolve to an active 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 file a timely Response to the Complainant’s contentions. 6. Discussion and Findings 6.1 Late filing of Response Paragraph 5 of the Rules provides, relevantly, as follows: “5. The Response (a) Within twenty (20) days of the date of commencement of the administrative proceeding the Respondent shall submit a response to the Provider. (b) The Respondent may expressly request an additional four (4) calendar days in which to respond to the complaint, and the Provider shall automatically grant the extension and notify the Parties thereof… (e) At the request of the Respondent, the Provider may, in exceptional cases, extend the period of time for the filing of the response. The period may also be extended by written stipulation between the Parties, provided the stipulation is approved by the Provider. (f) If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” Paragraph 10 of the Rules provides, relevantly, as follows: “10. General Powers of the Panel (a) The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules. (b) In 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. (c) The Panel shall ensure that the administrative proceeding takes place with due expedition. It may, at the request of a Party or on its own motion, extend, in exceptional cases, a period of time fixed by these Rules or by the Panel…” In the present proceeding, the Respondent did not request the Center to extend the period of time for filing of the Response prior to the expiry of the deadline for filing of the Response. The Rules do not expressly provide for respondents to seek leave to file a late response after panel appointment. In seeking to file the late Response, the Respondent asserted in his email sent to the Center on January 11, 2021 that, due to COVID-19, he did not receive the relevant documents and did not know about the present administrative proceeding. The Panel does not find this contention convincing. The Respondent did not file any materials in support of his contentions, nor did the Respondent explain how he came to find out about the Complaint, which led to his attempt to file the Response seven days after the deadline had expired. The Panel notes that the Center has sent the relevant communications to the Respondent in both Chinese and English language – in particular, the notification of commencement stipulating the deadline for filing of the Response – sent to him using his email address provided to the Center by the Registrar. The only reasonable inference to be drawn, notwithstanding COVID-19, is that the Respondent received all of the relevant communications in respect of this proceeding from the Center, but chose not to file a Response until after the deadline had expired. The Panel is cognisant of the conflicting considerations between paragraph 10(b) of the Rules, on the one hand, and paragraphs 10(a) and 10(c) of the Rules, on the other. Balancing these countervailing considerations, and in all the circumstances, the Panel finds that this is not an exceptional case where extension of the period of time for filing of the Response, after the deadline had already expired, is justified. The Panel therefore finds that it will decline to accept the late Response in this proceeding. 6.2. 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) the Registrar provides an option to view and use its full website and related tools in the English language, which suggests that the Registrar regularly serves English speaking customers; (ii) the disputed domain name is nearly identical to the Complainant's English language company name and Trade Mark. Moreover, there is no equivalent Chinese (or other foreign language) translation of the disputed domain name, including the English language generic Top-Level Domain (“gTLD”) “.com”; and (iii) allowing the proceeding to proceed in Chinese would arguably give the Respondent an advantage by forcing the Complainant to incur additional costs and expenses in seeking local assistance in China. The Respondent did not file a timely response and did not file any timely submissions regarding the language of the proceeding. The Respondent did, in his Chinese language email to the Center submitting his late response, contend that he does not know English, and requested the Center to communicate with him in 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. The Panel does not find the first two grounds relied upon by the Complainant convincing (or, in the case of the submission as to the Chinese language equivalent of the “.com” gTLD, correct). Although there is insufficient evidence before the Panel to support a conclusion that the Respondent is conversant in English, equally, there is no evidence to support the conclusion that the Respondent is not conversant in English. In this regard, although the Respondent contended when filing his late response that he does not know English, the Panel considers he must have had a certain understanding of the English language Complaint in preparing and filing his late response in Chinese. The Panel notes that 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, and further in light of the Panel’s determination not to allow the late filing of the Response in section 6.1 above, 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. 6.3. 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) prefaced by the letters “cn”, a commonly used abbreviation for China, and the letters used for the country code Top-Level Domain (“ccTLD”) for China, “.cn”. 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 it 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. 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. Moreover, the disputed domain name that is nearly identical to the Complainant’s Trade Mark save for the addition of the letters “cn” carries a risk of implied affiliation. See section 2.5.1 of WIPO Overview 3.0. 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; the fact the disputed domain name is confusingly similar to the Trade Mark; the lack of any timely response from the Respondent and the unconvincing reasons put forward by the Respondent for its late Response; and the passive holding of the disputed domain name, 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 it registered the disputed domain name. 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: February 23, 2021
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