The Complainant is BSH Hausgeräte GmbH, Germany, represented by Stephan Biagosch, Germany.
The Respondent is 张甜甜 (Zhang Tian Tian), 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 January 18, 2021. On January 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 19, 2021, 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 January 19, 2021 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 amendment to the Complaint in English on January 20, 2021. On January 19, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On January 20, 2021, the Complainant confirmed its 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 amendment to the 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 proceedings commenced on January 25, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 31, 2021. The Center appointed Rachel Tan as the sole panelist in this matter on April 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 The Complainant is a home appliance manufacturer from Germany. It was founded in 1967 as a joint venture of Robert Bosch GmbH (Stuttgart) and Siemens AG (Munich). The Complainant has around 58,000 employees worldwide and had reached turnover of around EUR 13.2 billion in 2019. Its product portfolio ranges from cookers, ovens and extractor hoods, dishwashers, washers and dryers, fridges and freezers to small appliances such as vacuum cleaners, coffee machines or food processors. The Complainant’s brands include Bosch, Siemens, Gaggenau and Neff. The Complainant is using the GAGGENAU trade mark in relation to household appliances including ovens, cooktops, refrigerators, dishwashers and washing machines. It is the owner of a range of trade mark registrations that incorporate the element “Gaggenau” in different countries, such as European Union Trade Mark No. 000061085 for GAGGENAU, registered on July 28, 1999 in classes 7, 9, 10, 11, 16, 20, 21, 37 and 41, International trade mark No. 568199 for GAGGENAU, registered on February 4, 1991, designating, inter alia, China, in class 11, Chinese trade mark No. 8098948 for GAGGENAU, registered on March 14, 2011 in class 7, Chinese trade mark No. 8098946 for GAGGENAU, registered on March 28, 2011 in class 9 and Chinese trade mark No. 8098944 for GAGGENAU, registered on April 28, 2011 in class 11. The Respondent is 张甜甜 (Zhang Tian Tian), China. The disputed domain name was registered on July 3, 2019 and resolves to an active webpage in Chinese language offering cooktops, dishwashers, extractor hoods, ovens, washing machines and refrigerators products. 5. Parties’ Contentions A. Complainant The Complainant contends that the distinctive element “gaggenau” of the disputed domain name is identical to the Complainant’s GAGGENAU trade mark. The disputed domain name merely adds the geographic indication “china” to the Complainant’s trade mark. The generic Top-Level Domain (“gTLD”) suffix “.com” may generally be disregarded in the comparison between a domain name and a trade mark. The Complainant further alleges that it is the holder of numerous GAGGENAU trade mark registrations in China and did not authorize any third party to use the GAGGENAU trade mark or the disputed domain name. There are no business relations between the Complainant and the Respondent and/or the entity offering goods (if any) on the resolved website under the disputed domain name. The resolved website under the disputed domain name is an obvious imitation of the Complainant’s website “gaggenau-world.com”. In particular, the images represented on the website of the disputed domain name were merely copied from the Complainant’s website and the products offered on the website (if any) are not delivered by the Complainant. The obvious purpose of the current use of the disputed domain name is to misleadingly divert consumers and/or to tarnish the GAGGENAU trade mark. The Complainant finally asserts that the content of the resolved website under the disputed domain name clearly indicates that the disputed domain name was registered and is held in bad faith. The Respondent has intentionally attempted to attract, for commercial gain, Internet users searching for original GAGGENAU products to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issue: Language of the Proceeding Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions. In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement as used by the registrant for the disputed domain name is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding for the reasons summarized below: (a) the disputed domain name comprises only Latin characters and hence is directed to non-Chinese customers as well; (b) the Complainant is unable to communicate in Chinese, and requiring the Complainant to translate the Complaint would cause undue burden and delay as well as costs; and (c) the registrar of the disputed domain name is operating worldwide. Choosing this specific registrar and disputed domain name indicates that the Respondent is capable of communicating in English; (d) English language is the world language in cross-border trade; and (e) the content of the resolved website under the disputed domain name gives the impression that original GAGGENAU products are offered and ordering such original GAGGENAU products would require communication in English language with the Complainant. 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 Panel having considered the circumstances finds that English shall be the language of this proceeding. The reasons are set out below. (a) the Complainant is a company based in Germany. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur translation expenses; (b) the Respondent’s choice of Roman letters for the disputed domain name indicates some familiarity with the English language; (c) even if the Respondent does not possess a sufficient command of English to understand the Complaint, there were ample opportunities for the Respondent to raise an objection. The Center notified the Parties in English and Chinese of the Complainant’s request for English to be the language of the proceeding, but the Respondent did not protest against this request; and (d) the Respondent has failed to participate in the proceeding even though the Center sent the notification of the Complaint in English and Chinese, and has been notified of his/her default. The Panel would have accepted a Response in Chinese, but none was filed. The Complaint has been submitted in English. No foreseeable procedural benefit may be served by requiring Chinese to be used. On the other hand, the proceeding may proceed expeditiously in English. 6.2 Substantive Issues A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has adduced evidence to demonstrate its established rights in the GAGGENAU mark. The Panel notes the disputed domain name wholly encompasses the GAGGENAU mark. The positioning of the GAGGENAU mark in the front of the disputed domain name is instantly recognizable. In cases where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Further, it is accepted by previous UDRP panels that the addition to the complainant’s trade mark of other words or terms whether descriptive, geographical, pejorative, meaningless, or otherwise would not affect the similarity of the domain name from the registered trade mark under the first element of the Policy. The Panel considers that the addition of the symbol “-” and geographical term “china” do not avoid the marks from being confusingly similar. As such, the Panel finds the additional elements “-” and “china” do not preclude a finding of confusing similarity between the GAGGENAU mark and the disputed domain name. See section 1.8 of the WIPO Overview 3.0. Lastly, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”), in this case “.com”. See section 1.11.1 of the WIPO Overview 3.0. Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests In circumstances where the Complainant possesses exclusive rights to the GAGGENAU mark, whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the burden of production shifts to the Respondent. See section 2.1 of the WIPO Overview 3.0. The Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “gaggenau” in the disputed domain name. Further, there is no indication to show that the Respondent is commonly known by the disputed domain name or otherwise has rights or legitimate interests in the disputed domain name. The Complainant submits that the website under the disputed domain name is an obvious imitation of the Complainant’s website “gaggenau-world.com”. The Respondent is currently using the disputed domain name on a webpage offering cooktops, dishwashers, extractor hoods, ovens, washing machines and refrigerators products. However, the Complainant has not granted the Respondent a license or authorization to use the Complainant’s GAGGENAU mark or register the disputed domain name. None of these circumstances indicates a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name within the meaning of paragraph 4(c) of the Policy are present in this case. For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Complainant’s GAGGENAU mark had been registered well before the registration of the disputed domain name. Through extensive use and advertising, the Complainant’s GAGGENAU mark is known throughout the world. Moreover, the term “gaggenau” is not merely a name. Search results using the key word “gaggenau” on the Baidu and Google search engines direct Internet users to the Complainant and its products/services, which indicates that a connection between the GAGGENAU mark and the Complainant has been established. As such, the Respondent either knew or should have known of the Complainant’s GAGGENAU mark when registering the disputed domain name or has exercised “the kind of willful blindness that numerous panels have held support a finding of bad faith”. See eBay Inc. v. Renbu Bai,WIPO Case No. D2014-1693; Barclays Bank PLC v. Andrew Barnes,WIPO Case No. D2011-0874. Section 3.1.4 of the WIPO Overview 3.0 states that “mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trade mark by an unaffiliated entity can by itself create a presumption of bad faith”. In this case, the disputed domain name incorporates the Complainant’s famous GAGGENAU mark plus the element “-china” creating a presumption of bad faith. The Panel notes that the disputed domain name resolved to a website displaying the Complainant’s GAGGENAU mark and offering the Complainant’s goods or the same type of goods as the Complainant. In addition, the resolved website is using the images from the Complainant’s website. The Panel is of the view that the Respondent intentionally created a likelihood of confusion with the Complainant’s GAGGENAU mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. This demonstrates bad faith use of the disputed domain name, as provided in paragraph 4(b)(iv) of the Policy. The Respondent has kept silent in the face of the Complainant’s allegations of bad faith. Taking into account these circumstances, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain name and, considering the Respondent’s lack of rights or legitimate interests, and by registering and using the disputed domain name as discussed above, the Panel is led to conclude that the disputed domain name was registered and is being used in bad faith. Accordingly, the Panel finds that the Complainant has satisfied the third element under paragraph 4(a) 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 Rachel Tan
Sole Panelist
Date: April 21, 2021
Full & Egal Universal Law Academy