The Complainant is Korian, France, represented by Scan Avocats AARPI, France.
The Respondent is Zhichao Yang (杨智超), 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 November 16, 2020. On November 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 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 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 November 20, 2020. On November 18, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on November 23, 2020. 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 of the Complaint in English and Chinese, and the proceeding commenced on December 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2021. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 8, 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 listed company incorporated in France and a leading provider, since 2003, of nursing home and related aged care services under the trade mark KORIAN (the “Trade Mark”) in France, Germany, Belgium, Italy, Spain, and the Netherlands. The Complainant is the owner of registrations for the Trade Mark in several jurisdictions, including European Union registration No. 005192224, with a registration date of August 29, 2007. The Complainant is also the owner of several domain names comprising the Trade Mark, including The Respondent is apparently an individual located in China. C. The Disputed Domain Name The disputed domain name was registered on July 28, 2020. D. Use of the Disputed Domain Name The disputed domain name has been resolved at different times to a French language website providing sponsored links to nursing home and aged care related websites (the “Website”); and to an English language website providing sponsored links to air travel related websites. 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 was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 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, 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 several reasons, including the fact the Respondent has obtained a Gmail email address which email addresses are not readily available to residents of China; the disputed domain name is an English language domain name; the Website is an French language website, and the disputed domain name has also been resolved to an English language website with sponsored links, all of which demonstrate the Respondent can cope with the English language. The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judiciously 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 finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel also notes that the relevant case related communications were sent in both English and Chinese and that the Respondent did not reply to any of those communications. 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 “airlines”. 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 Marks. 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, the disputed domain name has been resolved to the Website, containing French language pay-per-click links relating to the same nursing home and aged care services provided for many years by the Complainant in France (and elsewhere in Europe) under the Trade Mark. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1). In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In light of the Complainant’s rights in the Trade Mark; the repute of the Trade Mark in the nursing home and aged care field; the fact the disputed domain name incorporates the entirely of the Trade Mark; the manner of use of the disputed domain name highlighted in Section B. above in targeting the Complainant; and the Respondent’s failure to submit any response, the Panel finds that the requisite element of bad faith has been made out. The Panel therefore finds 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 24, 2021
Full & Egal Universal Law Academy