The Complainant is Boehringer Ingelheim Pharma Gmbh & Co.KG, Germany, represented by Nameshield, France.
The Respondent is 杨智超 (Zhichao Yang), China.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in English on July 23, 2021. On July 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On July 27, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 29, 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 July 29, 2021.
On July 29, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on July 29, 2021. 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 August 12, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 13, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 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. ComplainantThe Complainant is a pharmaceutical company incorporated in Germany and founded by Albert Boehringer in Ingelheim am Rhein, Germany, in 1885. The three business areas of the Complainant are human pharmaceuticals, animal health, and biopharmaceuticals. In 2020, net sales of the Complainant’s group of companies amounted to about EUR 19.6 billion.
The Complainant is the owner of registrations for its trade mark BOEHRINGER INGELHEIM (the “Trade Mark”) in jurisdictions worldwide, including International registration No. 221544, with a registration date of July 2, 1959; and International registration No. 568844 (designating China), with a registration date of March 22, 1991.
The Complainant has also owned and used the domain name
The Respondent is apparently an individual resident in China.
C. The Disputed Domain NamesEach of the disputed domain names was registered on the same date, July 18, 2021.
D. Use of the Disputed Domain NamesThe disputed domain names have been resolved to English language websites providing sponsored links to animal health and pet care related websites (the “Websites”).
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain names; and the disputed domain names have been registered and are being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingThe language of the Registration Agreement for the disputed domain names 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 based on the following: (i) English language is the language most widely used in international relations; (ii) the disputed domain names are formed by words in Roman characters (ASCII) and not in Chinese script; and (iii) the Complainant would have had to retain specialized translation services at a cost very likely to be higher than the overall cost of these proceedings.
The Respondent did not file a formal 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.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language considering that the disputed domain names are composed by words in Roman characters and the content of the disputed domain names is in English. The Panel also notes that the relevant case related communications were sent in both English and Chinese. 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 PolicyThe Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
Eighteen of the disputed domain names include Complainant’s Trade Mark in its entirety. In cases where a domain name incorporates the entirety of a trademark, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7).
The remaining disputed domain names consist of a common, obvious, or intentional misspelling of the Complainant’s Trade Mark and/or the term “pet rebates” comprised in the Complainant’s Relevant Domain Name (see WIPO Overview 3.0, section 1.9).
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark.
B. Rights or Legitimate InterestsParagraph 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 names or to use the Trade Mark. 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 names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services.
To the contrary, the disputed domain names have been resolved to the Websites, containing pay-per-click links relating to animal health and pet care products – the goods in respect of which the Complainant’s Trade Mark has been used for many years – for commercial gain. The Complainant’s uncontested evidence demonstrates that the Respondent has deliberately registered and used the disputed domain names to create confusion amongst Internet users with the Complainant’s Trade Mark and with the Complainant’s Relevant Domain Name, for commercial gain.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
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 names. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad FaithIn light of the manner of the use of the disputed domain names highlighted in Section 6.B. above, the Panel finds that the requisite element of bad faith has been made out.
The Panel therefore finds that the disputed domain names have been registered and are being used in bad faith.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names
Sebastian M.W. Hughes
Sole Panelist
Dated: October 13, 2021