Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
Respondent is yinghui (麻慧燕), China / Zhang Hang (张航), 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 June 25, 2021. On June 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 1, 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 Complainant on July 1, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 2, 2021. On July 1, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On July 2, 2021, Complainants confirmed their request that English be the language of the proceeding. 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 Respondent of the Complaint in English and Chinese, and the proceedings commenced on July 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 29, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 30, 2021. The Center appointed Yijun Tian as the sole panelist in this matter on August 4, 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, Compagnie Générale des Etablissements Michelin, is a company incorporated in France. It is a world leading tire company, which is dedicated to enhancing its clients’ mobility, sustainably, designing and distributing the most suitable tires, services and solutions for its clients’ needs (Annex 3 to the Complaint). Complainant is present in 171 countries, including China. In 1989, Complainant has set up the first representative office in Beijing, China (Annex 3 to the Complaint). In December 2001, Michelin (China) Investment Co., Ltd. was established and headquartered in Shanghai, China. In 2003, it set up Michelin Shenyang Tire Co., Ltd as the Michelin Group’s first joint venture in China. Complainant has exclusive rights in MICHELIN, and MICHELIN related marks (hereinafter “MICHELIN marks”). Complainant is the exclusive owner of numerous MICHELIN marks worldwide, such as an International trademark registration for MICHELIN registered on June 11, 2001 (International Trademark Registration No. 771031) which covers China; and an European Union trademark registration for MICHELIN registered on September 27, 2011 (European Union Trademark Registration No. 009914731). B. Respondent Respondent is yinghui (麻慧燕) / Zhang Hang (张航), China. The disputed domain name Complainant contends that the disputed domain name Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that Respondent has registered and used 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 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name a) Complainant is located in France and has no knowledge of Chinese. To proceed in this language, Complainant would have to retain specialized translation services at a cost that is likely to be higher than the overall cost for the present proceedings; b) The use of another language than English in the proceeding would impose a burden on Complainant, which must be deemed significant in view of the cost for the present proceedings; c) The disputed domain name includes only Latin characters, which strongly suggests that Respondent has knowledge of languages other than “Chinese”; d) Today, English is the primary language for international relations, and it is one of the working languages of the Center. Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding. 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 other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593). The language finally decided by the panel for the proceeding should not be prejudicial to either one of the parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). Section 4.5.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states: “Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case. Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (See also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585). The Panel has taken into consideration the facts that Complainant is a company from France, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name On the record, Respondent appears to be a Chinese resident and is thus presumably not native English speaker. However, considering the following, the Panel has decided that English should be the language of the proceeding: (a) the disputed domain name includes Latin characters and English word “china”, rather than Chinese script; (b) the gTLD of the disputed domain name is “.com”, so the disputed domain name seems to be prepared for users worldwide, particularly English speaking countries; (c) the Center has notified Respondent of the proceeding in both Chinese and English, and Respondent has indicated no objection to Complainant’s request that English be the language of the proceeding; and (d) the Center informed the Parties, in English and Chinese, that it would accept a Response in either English or Chinese. The Panel would have accepted a response in Chinese but none was filed. Accordingly, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English. 6.2. Substantial Issues 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 MICHELIN 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 “.com”, 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 MICHELIN marks have been registered internationally, including an international registration covering China since 2001, which long precede Respondent’s registration of the disputed domain name (in 2020). According to the Complaint, Complainant is a world leading tire company, which is dedicated to enhancing its clients’ mobility, sustainably, designing and distributing the most suitable tires, services and solutions for its clients’ needs. Complainant has set up the first representative office in Beijing, China since 1989. In 2003, it set up Michelin Shenyang Tire Co., Ltd as the Michelin Group’s first joint venture in China. Moreover, Respondent is not an authorized dealer of MICHELIN 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 “michelin” in the disputed domain name and in his business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the MICHELIN marks or to apply for or use any domain name incorporating the MICHELIN 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 currently has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2020, long after the MICHELIN marks became internationally known. The disputed domain name is confusingly similar to the MICHELIN 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. The website resolved by the disputed domain name is currently inactive. The Panel notes that Respondent has not produced any evidence to establish rights or legitimate interests in the disputed domain name. Accordingly, Complainant has established on balance 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. (a) Registration in Bad Faith The Panel finds that the MICHELIN marks have widespread reputation as a world leading tire company, which is dedicated to enhancing its clients’ mobility, sustainably, designing and distributing the most suitable tires, services and solutions for its clients’ needs. As mentioned above, MICHELIN marks are registered internationally, including international trademark covering China (since 2001). It currently has different business units in China. It is not conceivable that Respondent would not have had actual notice of the MICHELIN marks at the time of the registration of the disputed domain name (in 2020). The Panel therefore finds that the MICHELIN 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 The disputed domain name is currently inactive. In terms of inactive domain names, section 3.3 of the WIPO Overview 3.0 provides: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding”. It further states: “While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put”. As discussed above, Complainant’s MICHELIN marks are widely known in the world, including in China. Complainant has set up the first representative office in Beijing, China since 1989. Taking into account all the circumstances of this case, the Panel concludes that the current inactive use of the disputed domain name by Respondent is also in bad faith. In summary, in the absence of evidence to the contrary from Respondent, the choice of the disputed domain name that is identical or confusingly similar to Complainant’s well-known trademarks and the non-use of the disputed domain name are 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: August 25, 2021
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