The Complainant is Boehringer Ingelheim Animal Health France, France, represented by Nameshield, France.
The Respondent is Hashida Youta, Personal, Japan.
2. The Domain Name and RegistrarThe disputed domain name
Discount-Domain.com and Onamae.com (the “Registrar”).
3. Procedural HistoryThe Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2021. On July 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 28, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On July 31, 2021, the Center transmitted an email communication to the Parties in English and Japanese regarding the language of the proceeding. On August 2, 2021, the Complainant submitted a 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 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 Japanese of the Complaint, and the proceedings commenced on August 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 5, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 19, 2021.
The Center appointed Douglas Clark as the sole panelist in this matter on October 12, 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 BackgroundThe Complainant is a global company with business, inter alia, in the pet and equine animal health business. The Complainant is the proprietor of Trade Marks including the term “frontline”, including:
FRONTLINE International Trade Mark registration number 621912 registered on June 9, 1994. This mark designates a number of countries, but not Japan;
FRONTLINE PLUS United States Trade Mark registration number 2763796 registered on September 16, 2003; and
The above Trade Marks are all registered in classes relating to the treatment and care of animals. Specifically, FRONTLINE PLUS is indicated for the treatment and prevention of fleas, ticks and chewing lice in dogs and cats. It also breaks the flea life cycle by preventing the development of immature stages. It aids in the control of sarcoptic mange in dogs.
The Complainant also owns several domain names comprising the terms “frontline plus”, such as
The Respondent is an individuals based in Japan.
The disputed domain name
The Complainant contends the disputed domain name is confusingly similar to the Complainant’s Trade Marks. The addition of the letter “e” in the disputed domain name does not change the overall impression of the designation as being connected to the Complaint’s Trade Marks. The Complainant also contends that the Top-Level Domain (“TLD”) in the disputed domain name (namely “.com” in this case) should be disregarded for the confusing similarity test.
The Complainant contends the Respondent has no rights and legitimate interest in the disputed domain name on the bases: (i) the Respondent is not commonly known by the disputed domain name; (ii) the Respondent is not affiliated nor authorized by the Complainant in any way, specifically no license nor authorization has been granted to the Respondent to make any use of the Complainant’s Trade Marks, or apply for registration of the disputed domain name; (iii) the disputed domain name resolves to a blank page which confirms that the Respondent has no demonstrable plan to use the disputed domain name.
The Complainant further contends the disputed domain name was registered and used in bad faith, on the bases: (i) the Respondent registered the disputed domain name many years after the Complainant has established a strong reputation and goodwill in its Trade Marks; (ii) the Respondent knew of the Complaint’s brand and business and yet registered the disputed domain name that is confusingly similar to the Complainant’s Trade Marks; (iii) the Respondent has not demonstrated any activity in respect of the disputed domain name as it resolves to a blank page.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1 Language of ProceedingAccording 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.
Based on the given evidence, 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 principally on the following grounds:
(a) English language is the most widely used in international relations and is one of the working languages of the Center.
(b) Disputed domain name is comprised of Roman characters (ASCII), not in Japanese script.
(c) Specialized translation to Japanese language would impose a significant burden on the Complainant, in comparison with the costs of these types of proceedings.
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 English and Japanese; and
- the terms “efrontlineplus”, is made up of English words.
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”.
6.2 Substantive IssuesThe 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 are being used in bad faith.
A. Identical or Confusingly SimilarThe Panel finds that the disputed domain name is confusingly similar to the Complainant’s Trade Marks. The Complainant has established its right to the Trade Marks by submitting evidence of its registration.
The Respondent’s addition of the letter “e” does not change the fact that the disputed domain name contains “frontlineplus” which is identical to Complainant’s FRONTLINE PLUS Trade Mark and thus remains readily identifiable. Neither the additional “e” nor term “plus” would prevent the disputed domain name from being confusingly similar to Complainant’s FRONTLINE Trade Mark.
The Panel notes that the Complainant did not rely on any registered trademarks in Japan where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel’s further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”)).
The generic Top-Level Domain is generally disregarded when considering the first element. (See section 11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”))
The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsThere is no evidence that the Respondent has any business with or is in any way affiliated with the Complainant, nor that the Respondent is authorized or licensed to use the Complainant’s trade marks or to apply for registration of the disputed domain name. Furthermore, there is no evidence that the Respondent is commonly known by of the disputed domain name.
There is also no evidence that the Respondent has used or is planning to use the disputed domain name for a bona fide offering of goods or services. In addition, the Respondent has not responded to any of the Complainant’s contentions.
Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, which has not been rebutted by the Respondent. Moreover, when considering the construction of the disputed domain name, the Panel finds that its nature if such to carry a risk of implied affiliation to Complainant. See section 2.5.1 of the WIPO Overview 3.0.
The Complainant has therefore satisfied the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithBased on the given evidence, the disputed domain name was registered and is being used in bad faith.
The Panel is satisfied that the Respondent was aware of the Complainant and its Trade Marks when it registered the disputed domain name. While both words are English language words that can be used for other purposes, the combination has not particular meaning. A Google search for “front line plus” results in hits on only the Complainant’s products.
Although, the disputed domain name resolves to a blank page, it is well established that the lack of use of the disputed domain name does not prevent a finding of bad faith under the doctrine of passive holding. (See section 3.3 of the WIPO Overview 3.0). In the circumstances of this proceeding, the construction of the disputed domain name, and the lack of the Respondent’s participation in this proceeding, the Panel finds that the non-use of the disputed domain name does not prevent a finding of bad faith.
For the above reasons, the Panel finds that the disputed domain name was registered and has been used in bad faith.
The Complainant has therefore satisfied the third element under paragraph 4(a) of the Policy.
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 name
Douglas Clark
Sole Panelist
Date: October 29, 2021