The Complainant is M.H Alshaya Co. W.L.L, Kuwait, represented by Al Tamimi & Company, United Arab Emirates.
The Respondent is MR Wang, 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 June 3, 2021. On June 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 8, 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 June 8, 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 amended Complaint in English on June 9, 2021. On June 8, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On June 9, 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 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 in English and Chinese of the Complaint, and the proceeding commenced on June 14, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 4, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 6, 2021. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 15, 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 The Complainant is a multinational retail franchise operator headquartered in Kuwait and part of the Alshaya Group of companies, founded in 1890 and owned by the Alshaya family. The Complainant is the owner of registrations in jurisdictions worldwide for its (word and device) trade marks M H ALSHAYA CO., ALSHAYA ENTERPRISES, ALSHAYA GROUP, ALSHAYA HOLDINGS, ALSHAYA PROPERTY DEVELOPMENT CO., and ALSHAYA TRADING CO. (the “Trade Mark(s)”), including registration No. 110193 in Kuwait for the Trade Mark M H ALSHAYA CO. (in Arabic شركة محمد حمود الشايع), with a registration date of June 3, 2013. B. Respondent The Respondent is apparently an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on January 29, 2021. D. The Website at the Disputed Domain Name According to the submissions in the Complaint, the disputed domain name has previously been used by the Respondent in respect of a Chinese language gambling website (the “Website”). As at the date of this Decision, the disputed domain name is not resolved to any active website. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Marks; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. Paragraph 11(a) of the Rules allows the panel to determine the language of the proceeding having regard to all the circumstances. In particular, 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 Complainant has requested that the language of the proceeding be English, for the following reasons: (i) the Complainant would be unfairly disadvantaged and would incur exorbitant additional costs if it were to be required to translate the Complaint into Chinese; and (ii) the Respondent may have an understanding of English as the disputed domain name has been registered using the generic Top Level Domain (“gTLD”) “.com” instead of the ccTLD “.cn” for China. The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file any submissions with respect to the language of the proceeding. In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs. Although there is insufficient evidence before the Panel to support a conclusion that the Respondent is conversant in English, the Panel notes that the Respondent has chosen not to contest this proceeding; and that all of the Center’s communications with the Parties have been sent in English and Chinese languages. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2. Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration. The disputed domain name incorporates the dominant feature of the Trade Marks – namely, the word ALSHAYA (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) prefaced with the letter “m-” which, according to the Complainant, is a common way of abbreviating the name of the Chairman of the Complainant, Mr. Mohammed Alshaya, a person recognized as a leading Arab businessman and a recipient of numerous accolades and awards. Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Marks. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent of the dispute, the respondent’s use 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) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or (iii) the 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 the trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, it would appear that the Respondent has made use of the disputed domain name, for commercial gain, by providing gambling content on the Website; and the Respondent is presently not making any use of the disputed domain name at all. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. In addition, the Panel notes the nature of the disputed domain name, which carries a risk of implied association (see WIPO Overview 3.0, section 2.5.1). The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In light of the manner of use of the disputed domain name highlighted in Section B. above, the Panel finds that the requisite element of bad faith has been made out, under paragraph 4(b)(iv) of the Policy. The fact that the disputed domain name is not currently resolved to any active website does not prevent a finding of bad faith. The Panel finds that, in light of the repute of the Trade Marks, it is inconceivable that the Respondent was not aware of the Complainant and of its rights in the Trade Marks at the time of registration of the disputed domain name. The Panel also finds that, in light of the repute of the Trade Marks, and on the evidence herein, there cannot be any actual or contemplated good faith use of the disputed domain name by the Respondent. For all the foregoing reasons, the Panel concludes that the disputed domain name has been 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 Sebastian M.W. Hughes
Sole Panelist
Dated: July 23, 2021
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