Complainant is Sodexo, France, represented by Areopage, France.
Respondent is bin quan wang, wang bin quan, 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 March 2, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 2, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on March 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 25, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 26, 2021. The Center appointed Yijun Tian as the sole panelist in this matter on April 6, 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 Complainant, Sodexo, is a company incorporated in France. Founded in 1966, Complainant is one of the largest companies in the world specialized in foodservices and facilities management, with 470,000 employees serving 100 million consumers in 67 countries. As one of the largest employers worldwide, for fiscal year 2019, its consolidated revenues reached 22 billion Euros (Annexes 3 and 4 to the Complaint). Complainant has exclusive rights in SODEXO and SODEXO related marks (hereinafter “SODEXO marks”). Complainant is the exclusive owner of numerous SODEXO marks, including an international trademark registration for SODEXO registered on January 8, 2008 (the international trademark registration number 964615), which covers China; a European trademark registration for SODEXO registered on June 27, 2008 (the European Union trademark registration number 006104657); and a Chinese trademark registration for SODEXO registered on January 8, 2008 (the Chinese trademark registration number G964615) (Annex 14 to the Complaint). B. Respondent Respondent is bin quan wang, wang bin quan, China. The disputed domain name Complainant contends that the disputed domain name Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain name. Complainant contends that Respondent has registered and is using the disputed domain name in bad faith. Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be transferred: (i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows: A. Identical or Confusingly Similar The Panel finds that Complainant has rights in the SODEXO marks. The disputed domain name Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name”. (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). Further, in relation to the gTLD suffix, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11.1) The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name: (i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or (iii) 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 Complainant’s trademarks. The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein). The SODEXO marks have been registered as international trademarks since 2008, including a Chinese trademark registration for SODEXO registered on January 8, 2008 (the Chinese trademark registration number G964615), which precede Respondent’s registration of the disputed domain name (in 2020). According to the Complaint, Complainant is one of the largest companies in the world specialized in foodservices and facilities management, with 470,000 employees serving 100 million consumers in 67 countries. As one of the largest employers worldwide, for fiscal year 2019, its consolidated revenues reached 22 billion Euros. Moreover, Respondent is not an authorized dealer of SODEXO branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name: (a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “sodexo” in the disputed domain name and in his/her business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the SODEXO marks or to apply for or use any domain name incorporating the SODEXO marks. (b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2020, long after the SODEXO marks became widely known. The disputed domain name is confusingly similar to the SODEXO marks. (c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, the disputed domain name resolves to a website providing online gaming and gambling services. It seems that Respondent is making profits through the Internet traffic attracted to the website under the disputed domain name. (See BKS Bank AG v. Jianwei Guo,WIPO Case No. D2017-1041; BASF SE v. Hong Fu Chen, Chen Hong Fu,WIPO Case No. D2017-2203.) The Panel notes that Respondent has not produced any evidence to establish his/her rights or legitimate interests in the disputed domain name. Accordingly, Complainant has established that Respondent has no rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out four circumstances, which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely: (i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location. The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and is using the disputed domain name in bad faith. (a) Registration in Bad Faith The Panel finds that Complainant has widespread reputation as one of the largest companies in the world specialized in foodservices and facilities management. As mentioned above, it has 470,000 employees serving 100 million consumers in 67 countries. For fiscal year 2019, its consolidated revenues reached 22 billion Euros. And the SODEXO marks are registered internationally, including in China (since 2008). It is not conceivable that Respondent would not have had actual notice of the SODEXO marks at the time of the registration of the disputed domain name (in 2020). The Panel therefore finds that the SODEXO mark is not one that a trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the UDRP decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787. Thus, the Panel concludes that the disputed domain name was registered in bad faith. (b) Use in Bad Faith Respondent is using the website resolved by the disputed domain name to provide online gaming and gambling services. Thus, the Panel concludes that Respondent is currently using the confusingly similar disputed domain name with the intention to attract, for commercial gain, Internet users to Respondent’s website. Given the reputation of the SODEXO marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain name resolves. In other words, Respondent has through the use of a confusingly similar disputed domain name created a likelihood of confusion with the SODEXO marks. Moreover, as mentioned above, Respondent offered online gaming and gambling services via the website to which the disputed domain name resolves, presumably for commercial gain. The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith. Such use of the disputed domain name is also disruptive in relation to the interests of Complainant. In summary, Respondent, by choosing to register and use the disputed domain name, which is confusingly similar to the SODEXO marks, intended to ride on the goodwill of this trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith. The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy. 7. Decision For all 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 Yijun Tian
Sole Panelist
Dated: April 20, 2021
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