The Complainant is Sodexo, France, represented by Areopage, France.
The Respondent is 王小芹 (Wangxiaoqin), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2021. On February 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 18, 2021, 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 February 19, 2021, 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 February 22, 2021. The Respondent did not comment on the language of the proceeding. The Center verified that 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 of the Complaint, and the proceedings commenced on February 25, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 31, 2021. The Center appointed Jonathan Agmon as the sole panelist in this matter on April 19, 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, SODEXO (formerly called SODEXHO ALLIANCE), is a French company founded in 1966. It is one of the largest companies in the world specialized in foodservices and facilities management. In 2008, SODEXHO simplified the spelling of its mark and name to SODEXO and changed its logo from The Complainant also owns numerous domain names corresponding to and/or containing SODEXO or SODEXHO: The Complainant owns numerous trademark registrations of the term “sodexho” / “sodexo” in many countries including China, including but not limited to the following: - (International Registration No. 964615) registered on January 8, 2008; - SODEXO (International Registration No. 1240316) registered on October 23, 2014; - SODEXO (European Union Trade Mark Registration No. 008346462) filed on June 8, 2009 and registered on February 1, 2010; - (European Union Trade Mark Registration No. 006104657) filed on July 16, 2007 and registered on June 27, 2008; - (International Registration No. 1195702) registered on October 10, 2013; and - (European Union Trade Mark Registration No. 011138501) filed on August 23, 2012 and registered on January 22, 2013. 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 SODEXO mark as the disputed domain name wholly incorporates the SODEXO mark. 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 SODEXO / SODEXHO mark and diluting the Complainant’s mark by attracting and redirecting Internet users to a website with malicious malware for achieving commercial gain. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of Proceedings 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 Complainant cannot understand the Chinese language; (iii) the Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language; and (iv) 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 a generic Top-Level Domain (“gTLD”) “.xyz”, as a standard registration requirement, is disregarded under the first element of confusing similarity test (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“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 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 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 SODEXO / SODEXHO mark since the year 1998. In view of the evidence filed by the Complainant, and the widespread use of the SODEXO / SODEXHO 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 SODEXO / SODEXHO mark is fanciful. The Panel draws the adverse inference that the Respondent must have been aware of the Complainant’s distinctive mark and specifically targeted the Complainant when registering the disputed domain name. Further, the Complainant also submitted evidence that the disputed domain name resolved to a website with malicious malware content. Past UDRP panelists have held that the use of a domain name for spreading viruses may constitute bad faith (see International Business Machines Corporation v. Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2019-1279; WK Travel, Inc. v. Li Yuan Feng,WIPO Case No. D2019-1255 and International Business Machines Corporation v. Registration Private, Domains By Proxy, LLC / I S, ICS INC,WIPO Case No. D2019-0833). The Panel agrees with the Complainant that such behavior by the Respondent in attempting to spread malware or virus to unsuspecting Internet users by creating a likelihood of confusion with the Complainant’s mark constitutes bad faith. Based on the particular circumstances of the present case and the distinctive nature of the SODEXO / SODEXHO 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 mark, the confusing similarity between the disputed domain name and the Complainant’s mark, the Respondent’s use of the disputed domain name, and the fact that no Response was submitted by the Respondent, the Panel finds 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
to
Sole Panelist
Date: May 3, 2021
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