The Complainant is Günkem Gündüz Kimyevi Maddeler Ith.San. Ve Tic. A. Ş., Turkey, represented by Turkticaret.net Yazilim Hizmetlerİ Sanayi Ve Ticaret A.S, Turkey.
The Respondent is 黄裕 (Huangyu), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 7, 2021. On October 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 13, 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 October 13, 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 on October 15, 2021.
On October 13, 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 October 15, 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 of the Complaint in English and Chinese, and the proceeding commenced on October 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 9, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 12, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on November 26, 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.
On December 3, 2021, the Panel issued Administrative Panel Procedural Order No. 1 (the “Panel Order”), pursuant to paragraphs 10 and 12 of the Rules, requesting the Complainant to provide by December 10, 2021 evidence of:
(i) the countries in which it offers its goods and services under the trade mark GÜNKEM (the “Trade Mark”);
(ii) the Complainant’s registration and use of the Trade Mark prior to June 15, 2019; and
(iii) the Complainant’s prior registration of the disputed domain name, and of the renewal period for its prior registration of the disputed domain name,
and providing the Respondent with the opportunity to file any submissions in response by December 13, 2021.
On December 7, 2021, the Complainant submitted further evidence as requested in the Panel Order.
The Respondent did not submit any response to the Panel Order.
4. Factual Background A. ComplainantThe Complainant is a company incorporated in Turkey in 1990 and a supplier, under the Trade Mark, of raw materials to customers, in more than 30 countries, in the paint production and construction chemicals industries.
The Complainant is the owner of several registrations for the Trade Mark, including Turkish registration No. 2006 66559, with an application date of December 29, 2006, with a registration date of January 11, 2008.
The Complainant was previously the owner of the disputed domain name, from June 21, 2006 until April 26, 2019.
The Complainant is also the owner of the domain name
The Respondent is an individual resident in China.
C. The Disputed Domain NameThe disputed domain name was registered on June 15, 2019.
D. Use of the Disputed Domain NameThe disputed domain name was previously resolved to a Chinese language website with pornographic content with downloadable links and apps (the “Website”). As at the date of this Decision, the disputed domain name is no longer resolved to any active website.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; 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. 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 name is Chinese. Pursuant to the Rules, paragraph 11(a), 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) Chinese is not a widely used language in Turkey;
(ii) for this reason, the execution of administrative correspondence in Chinese will lead to the Complainant not being able to express itself properly;
(iii) as a result, the Complainant requests that the administrative process be conducted in English so that the Complainant can use its rights effectively; and
(iv) finally, the English language is generally used in international correspondence.
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 taken no part in this proceeding; and that all of the Center’s communications with the Parties have been sent in 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. Disregarding the generic Top-Level Domain (“gTLD”) “.com”, the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical 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 name 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 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, the disputed domain name has previously been used, for commercial gain, in respect of the Website and in respect of pornographic content; and it is presently not being used for an active website.
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. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithGiven (i) the notoriety of the Complainant and of its Trade Mark in the industrial materials science field; (ii) the fact the Trade Mark has no meaning in the Chinese language; (iii) the fact the disputed domain name is identical to the Trade Mark; (iv) the Respondent’s registration of the disputed domain name shortly after its renewal period had expired, and after its long period of prior registration by the Complainant; (v) the Respondent’s prior use of the disputed domain name, for commercial gain, in respect of the Website; (vi) the taking down of the Website at some time following the filing of the Complaint; and (vii) the lack of any substantiated credible explanation from the Respondent, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time he registered the disputed domain name. Furthermore, the Respondent’s present non-use or passive holding of the disputed domain name would not prevent a finding of bad faith under the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith, and that the Complainant has satisfied paragraph 4(a)(iii) 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
Sebastian M.W. Hughes
Sole Panelist
Dated: December 17, 2021