The Complainant is Sodexo, France, represented by Areopage, France.
The Respondent is 钱梦聃 (Qian Meng Dan), China.
2. The Domain Names and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 22, 2021. On October 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 25, 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 October 25, 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 October 25, 2021.
On October 25, 2021, the Center sent 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 25, 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 proceedings commenced on November 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default November 22, 2021.
The Center appointed Douglas Clark as the sole panelist in this matter on November 30, 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 French company that specializes in food services and facilities management, with 420,000 employees serving 100 million consumers in 64 countries. From 1966 to 2008, the Complainant promoted its business under the SODEXHO mark. In 2008, the Complainant simplified the spelling of its mark and name to SODEXO.
The Complainant also owns numerous domain names containing SODEXO or SODEXHO, including
The Complainant is also the owner of several trade mark registrations for SODEXO and SODEXHO, including the following:
Trade Mark
Trade Mark No.
Classes
Registration Date
Jurisdiction
964615
9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45
January 8, 2008
International
SODEXO
1240316
9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45
October 23, 2014
International
689106
16, 36, 37, 39, 41, 42
January 28, 1998
International
694302
9
June 22, 1998
International
SODEXO
008346462
9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45
February 1, 2010
European Union
006104657
9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45
June 27, 2008
European Union
1195702
9, 16, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45
October 10, 2013
International
011138501
9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45
January 22, 2013
European Union
The Complainant provides a wide range of services under the SODEXO trade mark, including on-site services, benefits and rewards services and personal and home services.
The disputed domain names
The Complainant contends that:
(a) The disputed domain names are confusingly similar to its trade mark. The disputed domain names wholly incorporate the SODEXO trade mark and the addition of the terms “mtway” and “myeay”, and the generic Top-Level Domain (“gTLD”) “.com”, in the disputed domain names do not eliminate the confusing similarity between the trade marks and the disputed domain names;
(b) The Respondent has no rights or legitimate interests in the disputed domain names. The SODEXO trade mark is not affiliated with the Complainant in any way and the Complainant has never granted any authorisation or license to use the Complainant’s trade mark. The Respondent is not commonly known by the disputed domain names, and has not made a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names; and
(c) The disputed domain names were registered and are being used in bad faith. The mere fact that the Respondent has registered domain names incorporating the trade mark of a well-known company gives rise to an inference of bad faith. Based on the use of the disputed domain names, the Respondent registered and are using the disputed domain names to attract Internet users for commercial gain, creating a likelihood of confusion with the Complainant’s trade mark.
The Complainant requests the transfer of the disputed domain names.
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.
In this case, the language of the Registration Agreements for the disputed domain names is Chinese. 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 under the following grounds:
a) the Complainant is unable to communicate in Chinese and therefore would be prejudiced if it is required to translate the Complaint and supporting documents into Chinese;
b) in order to proceed in Chinese, the Complainant would have had to retain specialised translation services that would cause an unnecessary burden to the Complainant and delay the proceeding;
c) the disputed domain names are in Latin script and not Chinese script; and
d) the disputed domain names resolve to parking websites that contain English.
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 content on the websites of the disputed domain names contains English;
- the Center has notified the Respondent of the proceeding in both English and Chinese;
- the Respondent has not commented on the language of the proceeding; and
- an order for the translation of the Complaint and other supporting documents will result in significant expenses for the Complainant and a delay in the proceeding.
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 Multiple Domain NamesThe Panel notes that the present Complaint has consolidated multiple domain name disputes. At the time of filing it was not aware who the registrant of each domain name was. This was provided by the Registrar after the Complaint was filed.
According to paragraph 10(e) of the Rules, the Panel has the power to consolidate multiple domain name disputes. Paragraph 3(c) of the Rules also provides that a complaint may relate to more than one domain name, provided that the domain names are arguably registered by the same domain-name holder.
As the disputed domain names are all registered by the Respondent, the Panel accepts the Complainant’s application to consolidate the disputed domain names in the Complaint.
6.3 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 names are 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 names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
A. Identical or Confusingly SimilarThe Panel finds that the disputed domain names are confusingly similar to the Complainant’s trade mark. Both the disputed domain names incorporate the SODEXO trade mark in full, followed by the terms “mtway” for the disputed domain name
The Complainant has therefore satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsThe Respondent has not asserted any rights or legitimate interests in relation to the disputed domain names.
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 Complainant has asserted that the Respondent has no business with and is in no way affiliated with the Complainant. The Respondent is not authorized nor licensed to use the Complainant’s SODEXO trade mark or to apply for registration of the disputed domain names. There is no evidence that the Respondent has used or is planning to use the SODEXO trade mark or the disputed domain names for a bona fide offering of goods and services. In addition, the Respondent has not responded to any of the Complainant’s contentions. 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. Accordingly, the Respondent has no rights or legitimate interests in regard to the disputed domain names.
The Panel finds that 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 disputed domain names were registered long after the Complainant has registered the SODEXO trade mark and the use of the Complainant’s SODEXO trade mark cannot be a coincidence. The Complainant operates a mobile application by the name “MyWay by Sodexo” and the terms “mtway” and “myeay” are similar to the expression “my way”. The Panel is satisfied that the Respondent was aware of the Complainant and its SODEXO trade mark when he or she registered the disputed domain names.
The Respondent has registered the disputed domain names to attract Internet users to the websites for commercial gain in accordance with paragraph 4(b)(iv) of the Policy. The list of apparent pay-per-click links to unrelated third-party websites on the websites that the disputed domain names resolve to establish the Respondent is making a commercial gain from the websites by attracting users to generate click through revenue. By reproducing the Complainant’s SODEXO trade mark in the disputed domain names the Respondent is clearly seeking to target the Complainant and its trade mark.
For the above reasons, the Panel finds that the disputed domain names were registered and are being 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 names,
Douglas Clark
Sole Panelist
Date: December 14, 2021