The Complainant is Audemars Piguet Holding S.A., Switzerland, internally represented.
The Respondent is 肖远东(Xiao Yuan Dong), Ruijiang (Beijing) International Clock Technology Service Co. 瑞匠（北京）国际钟表技术服务有限公司 (Rui Jiang Bei Jing Guo Ji Zhong Biao Ji Shu Fu Wu You Xian Gong Si), 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 March 19, 2021. On March 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 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 March 24, 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 March 25, 2021. On March 24, 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 March 25, 2021. 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 April 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2021. The Center appointed Douglas Clark as the sole panelist in this matter on May 10, 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 Founded in 1875, the Complainant is one of the oldest independent watch manufacturers in the world and has manufactured handcrafted watches that are regarded as Haute Horlogerie. The Complainant’s watches are sold in around 65 countries around the world. The Complainant owns several trade mark registrations for AUDEMARS PIGUET around the world, including but not limited to the following registrations: Trade Mark Registration Number Registration Date Class Jurisdiction AUDEMARS PIGUET 2P-349004 October 23, 1986 14 Switzerland AUDEMARS PIGUET G331718 January 10, 2017 14 China AUDEMARS PIGUET 1,591,934 April 17, 1990 14 United States of America The Complainant’s brand and trade marks are extensively used and promoted around the world. The Complainant promotes its brand, products and customer services on various online social media platforms, marketing campaigns as well as on its official website at “www.audemarspiguet.com”. The disputed domain name The Complainant contends that: (a) The disputed domain name is confusingly similar to its trade mark. The addition of the term “beijing” in the disputed domain name does not eliminate the overall notion that the designation is connected to the trade mark and the likelihood of confusion that the disputed domain name and the trade mark are associated; (b) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The Respondent claims to be an authorized repair center of the Complainant which the Complaint unequivocally states it is not. (c) The disputed domain name was registered and is being used in bad faith. The Respondent was aware of the Complainant’s trade mark at the time the Respondent registered the disputed domain name and has used the AUDEMARS PIGUET trade mark to promote identical goods and services. The Respondent is using the disputed domain name to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant’s trade mark. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of Proceedings According to paragraph 11(a) of the Rules, 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. In this case, the language of the Registration Agreement for the disputed domain name is in Chinese. There is no agreement between the Complainant and the Respondent regarding the language of the proceeding. The Complainant has filed its Complaint in English and has requested that English be the language for the proceeding under the following grounds: a) the Registration Agreement is in English. The Complainant challenged the statement by the Registrar the agreement was in Chinese. The Complainant provided a copy of an English language registration agreement on the Registrar’s website but provided no other evidence the actual agreement between the Respondent and the Registrar was in English; b) English is the international business language; c) a pre-action warning letter was sent in English to the Registrar; d) some key elements of the Respondent’s website are displayed in English. In accordance with paragraph 11(a) of the Rules and taking into consideration paragraph 10(b) and (c) of the Rules, the Panel hereby determines that the language of the proceeding shall be in English after considering the following circumstances: - the Center has notified the Respondent of the proceeding in both English and Chinese; - an order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding; and - some of the content on the Respondent’s website is in English. Further, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”. The Panel should add that as a matter of practice, without evidence to the contrary, a panel must accept the Registrar’s statement as to what the language of the registration agreement is. The mere fact that an English language registration agreement can be found on a registrar’s website is not sufficient to establish the actual registration agreement in issue is in English. 6.2 Substantive Issues The Complainant must satisfy all three elements of paragraph 4(a) of the Policy in order to succeed in its action: (i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights to; (ii) the 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. A. Identical or Confusingly Similar The Panel finds that the disputed domain name The Panel finds that the Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The Complainant has stated unequivocally that the Respondent is not, and has never been, an authorized service center of the Complainant and therefore it is not making legitimate use of the mark. The Respondent has not responded to any of the Complainant’s contentions to assert any rights or legitimate interests in relation to the disputed domain name. The Respondent does, however, appear to use the disputed domain name to promote its repair services of the Complainant’s products and the Panel ought to consider if this gives the Respondent a legitimate interest in the disputed domain name. The principal case governing whether the Respondent is making a bona fide offering of goods or services as a distributor or like service provider are set out in Oki Data Americas, Inc. v. ASD, Inc. WIPO Case No. D2001-0903, where the offering must meet the following cumulative requirements: (i) the respondent must actually be offering the goods or services at issue; (ii) the respondent must use the site to sell only the trade marked goods or services; (iii) the site must accurately and prominently disclose the registrant’s relationship with the trade mark holder; and (iv) the respondent must not try to “corner the market” in domain names that reflect the trade mark. In this case the Respondent does not, at least, meet the third requirement set out above. The Respondent falsely describes itself as an “AUDEMARS PIGUET AUTHORIZED MAINTENANCE CENTER” on the website when it is not. Moreover, the disputed domain name carries a risk of implied affiliation. See section 2.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel finds that the Respondent does not have rights or legitimate interests in regard to the disputed domain name. The Panel finds that the Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Panel finds the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered long after the Complainant has registered the AUDEMARS PIGUET trade mark. The Panel is satisfied that the Respondent was aware of the Complainant and its AUDEMARS PIGUET trade mark when it registered the disputed domain name. It is falsely claiming to be an authorized service center so must have known of the Complainant. By prominently displaying the official photographs and trade mark on the website, the Respondent has registered the disputed domain name to attract Internet users to the website for commercial gain by creating a likelihood of confusion with the Complainant’s AUDEMARS PIGUET trade mark. For the above reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith. The Complainant has therefore 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 Douglas Clark
Sole Panelist
Date: May 18, 2021
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