The Complainant is Nestlé Waters, France, represented by Studio Barbero S.p.A., Italy.
The Respondent is 曹伟 (Cao Wei), 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 December 10, 2020. On December 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On December 14, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on December 14, 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 proceedings commenced on January 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 26, 2021. The Center appointed Jonathan Agmon as the sole panelist in this matter on February 9, 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 The Complainant, Nestlé Waters, is a subsidiary of the parent company, Société des Produits Nestlé S.A., a Swiss limited liability company founded in 1866 by Henri Nestlé. Both companies are part of Nestlé Group, that today sells products and services worldwide in various industries, primarily in the food industry. The Complainant is the division of the group appointed for selling bottled water and is one of the largest bottled water companies worldwide and markets its products all over the world, including China, where the Respondent is based. The Complainant produces bottled water under 49 different brands, including the trademarks PERRIER, SAN PELLEGRINO, and VITTEL, and its sales reached CHF 7,8 billion in 2019. The Complainant also owns registrations of many domain names including the PERRIER mark such as, inter alia, The Complainant owns numerous trademark registrations of the term PERRIER including China, including but not limited to the following: - PERRIER (International Registration No. 287542) registered on August 15, 1964; - PERRIER (Registration No. 382010) registered on June 30, 1984 in China; - PERRIER (Registration No. 15271744) registered on October 14, 2015 in China; and - PERRIER (Registration No. 28167008) registered on April 7, 2019 in China; The disputed domain name The Complainant’s contentions include the following: The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s registered PERRIER mark as the disputed domain name wholly incorporates the PERRIER with a generic Top-Level Domain (“gTLD”) “.tech” that are insufficient to avoid confusing similarity. The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as it has not licensed or permitted the Respondent to use any of its trademarks or register the disputed domain name. The Complainant further argues that the disputed domain name was registered and is being used in bad faith for commercial gain by creating a likelihood of confusion with the Complainant’s PERRIER mark and with the purpose of selling the disputed domain name to the legitimate trademark owner for valuable consideration in excess of out-of-pocket costs. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding Paragraph 11 of the Rules provides that: “(a) Unless 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.” The language of the Registration Agreement for the disputed domain name is Chinese. The Complainant requested that the language of the proceeding be English. The Respondent did not comment on the language of the proceeding. The Panel cites the following with approval: “Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding: (i) the disputed domain name consists of Latin letters, rather than Chinese characters; (ii) the Respondent is able to communicate in the English language; (iii) the Complainant cannot understand the Chinese language; (iv) the Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language; and (v) the Respondent did not object to the Complainant’s request that English be the language of the proceeding. Upon considering the above, the Panel determines that English be the language of the proceeding. 6.2 Substantive Issues A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name Further, it is well established that the addition of the gTLD “.tech”, as a standard registration requirement, is disregarded under the first element confusing similarity test. See WIPO Overview 3.0, section 1.11.1. Consequently, the Panel finds that the Complainant has shown that the disputed domain name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name (see WIPO Overview 3.0, section 2.1). In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests. The Complainant has provided evidence that it owns trademark registrations long before the disputed domain name was registered and that it is not affiliated with the Respondent nor has it licensed or otherwise permitted the Respondent to use the Complainant’s trademark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138). There is also no evidence on record showing that the Respondent is commonly known by the disputed domain name (see WIPO Overview 3.0, section 2.3). Further, the Respondent did not submit a Response in the present case and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain name sufficient to rebut the Complainant’s prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Complainant must also show that the Respondent registered and is using the disputed domain name in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy. The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned registration for the PERRIER mark since the year 1964. In view of the evidence filed by the Complainant, and the widespread use of the PERRIER mark, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name. Therefore, it is unlikely that the Respondent did not know of the Complainant’s mark prior to registration of the disputed domain name (see Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735). The Complainant has also submitted evidence that the Respondent registered the disputed domain name for the purpose of selling it to the Complainant for valuable consideration in excess of out-of-pocket costs directly related with registration (see paragraph 4(b)(i) of the Policy). Prior to commencement of the proceedings, the Complainant had communicated with and subsequently sent a cease-and-desist letter to the Respondent requesting for the transfer of the disputed domain name. The Respondent responded by asking for USD 3,699 in exchange for the transfer. The Respondent subsequently did not file a response to this Complaint. The Panel therefore draws an adverse inference against the conduct of the Respondent which constitutes bad faith that the Respondent specifically targeted the Complainant and registered the disputed domain name for the purpose of selling it to the Complainant for valuable consideration in excess of out-of-pocket costs directly related with registration. Given the distinctive nature of the Complainant’s PERRIER mark, and given the evidence provided by the Complainant, the Panel is of the view that the Respondent’s holding of the disputed domain name for sale in excess of out-of-pocket costs constitutes bad faith. Further, such use also disrupts the business of the Complainant. Based on the particular circumstances of the present case and the distinctive nature of the PERRIER mark, and based on the evidence presented to the Panel, including the registration of the disputed domain name after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s marks, the Respondent’s use of the disputed domain name, and the fact that no Response was submitted by the Respondent, the Panel draws the inference that the disputed domain name was 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 Jonathan Agmon
- (International Registration No. 607071) registered on September 1, 1993;
- (International Registration No. 944111) registered on November 2, 2007;
- (Registration No. 209906) registered on June 30, 1984 in China;
Sole Panelist
Date: February 23, 2020
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