ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Aquafine Corporation v. 孟福桂 (meng fugui) Case No. D2022-3249 1. The Parties The Complainant is Aquafine Corporation, United States of America, represented by Hahn Loeser & Parks LLP, United States of America ("USA"). The Respondent is 孟福桂 (meng fugui), China. 2. The Domain Name and Registrar The disputed domain name
is registered with Xin Net Technology Corp. (the "Registrar"). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on August 31, 2022. On September 1, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 5, 2022, 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 September 5, 2022 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 amendment to the Complaint in English on September 9, 2022. On September 5, 2022, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 8, 2022, the Complainant confirmed its 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 together with the amendment to 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"). page 2 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on September 16, 2022. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2022. The Respondent did not submit any formal response. The Center received the Respondent's communications by email on September 19, 2022 and September 26, 2022. The proceeding was suspended at the Complainant's request to enable the Parties to reach a settlement on September 26, 2022 but was reinstituted on October 31, 2022. On November 11, 2022, the Center informed the Parties that it would proceed to panel appointment. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on November 18, 2022. 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 The Complainant was founded in the USA in 1948 and is active in the liquid treatment and purification industry. The Complainant particularly commercializes purification and treatment products and systems for liquids including, among other things, ultraviolet lamps; UV light bulbs; environmental control apparatus; water treatment equipment; water sterilizers utilizing ultraviolet radiation and water sterilizers utilizing ultraviolet radiation. Since December 1998, Complainant has advertised its goods and services offered under the AQUAFINE mark on the website linked to its official domain name, namely , registered on November 25, 1997 (the Panel notes that this domain name is currently owned by the Complainant's parent company Trojan Technologies Inc.). The Complainant provides evidence that it owns an international portfolio of trademark registrations for AQUAFINE (word and device marks), for example USA trademark registration 0545116, for the word mark AQUAFINE, registered on July 17, 1951 and Chinese trademark registration 1006269, for the word mark AQUAFINE, registered on May 14, 1997. The relevant registered trademarks adduced by the Complainant were successfully registered prior to the date of registration of the disputed domain name by the Respondent, which is December 2, 2017. The Complainant submits evidence that the disputed domain name directed to an active website, which was operated as an e-commerce website selling and offering seemingly unauthorized AQUAFINE-branded products for sale. However, on the date of this Decision, the disputed domain name directs to an inactive webpage. 5. Parties' Contentions A. Complainant The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for AQUAFINE, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith. The Complainant claims that its trademarks date back to 1948 and are used intensively. The Complainant provides evidence that the disputed domain name was linked to an active website, operating as an ecommerce website. In this context, the Complainant claims that the Respondent was unlawfully passing itself off as the Complainant, using the Complainant's trademarks and its product images, and offering AQUAFINE products for sale to Internet users by taking unfair advantage of the Complainant's trademarks. The Complainant also contends that by registering the disputed domain name, which is almost identical to the Complainant's official domain name (the only difference being the reversal of the order of the terms "aquafine" and "uv"), the Complainant has attempted to divert unsuspecting Internet users page 3 to the disputed domain name for commercial gain. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent's communications in this proceeding are limited to his emails of September 19, 2022 and September 26, 2022, and the Respondent did not reply to the Complainant's contentions on the merits of this proceeding. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Administrative Proceeding Pursuant to paragraph 11(a) of the Rules, 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. According to the Registrar's verification response, the language of the Registration Agreement for the disputed domain name is Chinese. Nevertheless, the Complainant filed its Complaint and its amendment to the Complaint in English, and requests that English be the language of the proceeding. The Panel notes that the Respondent did not comment on the language of the proceeding and did not submit any arguments on the merits of this proceeding. In considering this request, the Panel has carefully reviewed all elements of this case, and deems the following elements particularly relevant: the Complainant's request that the language of the proceeding be English; the lack of comment on the language of the proceeding and the lack of response on the merits of this proceeding by the Respondent (the Panel notes that the Respondent was invited by the Center in Chinese and in English and in a timely manner to present its comments and response in either Chinese or English, but chose not to do so); the fact that the disputed domain name is written in Latin letters and not in Chinese characters and that the website linked to the disputed domain name (before it was taken offline) contained words and phrases in English; the fact that the Respondent wrote his emails of September 19, 2022 and September 26, 2022 in English, from which the Panel deducts that the Respondent is capable of understanding and expressing himself in English; and, finally, the fact that Chinese as the language of proceeding could lead to unwarranted delays and additional costs for the Complainant. In view of all these elements, the Panel grants the Complainant's request, and decides that the language of this proceeding shall be English. 6.2. Discussion and Findings on the Merits The Policy requires the Complainant to prove three elements: (a) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (c) the disputed domain name has been registered and is being used in bad faith. Based on the evidence and arguments submitted, the Panel's findings are as follows: page 4 A. Identical or Confusingly Similar The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the mark AQUAFINE, based on its use and registration of the same as a trademark. Further, as to confusing similarity of the disputed domain name with the Complainant's marks, the Panel finds that the disputed domain name consists of the combination of two elements, namely the Complainant's AQUAFINE trademark, preceded by the term "UV". According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7, "in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing" (see also Wal-Mart Stores, Inc. v. Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662). The Panel concludes that the disputed domain name contains the entirety of the Complainant's trademark, which remains easily recognizable as its only distinctive feature. The Panel furthermore accepts that the addition of the term "UV" before the Complainant's trademark does not prevent a finding of confusing similarity between the disputed domain name and the Complainant's trademarks (see WIPO Overview 3.0, section 1.8). Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks. The Panel decides that the Complainant has satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel accepts that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, is not a good faith provider of goods or services under the disputed domain name and is not making legitimate noncommercial use or fair use of the disputed domain name. The Panel also notes that the Respondent is not commonly known by the disputed domain name. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply. Further, reviewing the facts of this proceeding, the Panel notes that the disputed domain name directed to a webpage which showed a clear intent on the part of the Respondent to obtain unlawful commercial gains from misleading Internet users by using the Complainant's AQUAFINE trademark in the disputed domain name to offer presumably unauthorized AQUAFINE-branded products to such Internet users. Furthermore, the Panel has also taken into account the Complainant's evidence from which it is clear that the Respondent prominently displayed the Complainant's AQUAFINE marks and used the Complainant's own product images likely protected by copyright, thereby misleading consumers into believing that the Respondent is licensed by, or affiliated with the Complainant or its AQUAFINE trademarks. The Panel finds that the aforementioned use by the Respondent does not confer any rights or legitimate interests in the disputed domain name on the Respondent. However, the Panel notes that on the date of this decision, the disputed domain name directs to an inactive webpage. In this regard, the Panel finds that holding a domain name passively, without making any use of it, also does not confer any rights or legitimate interests in the disputed domain name on the Respondent (see in this regard earlier UDRP decisions such as Bollore SE v. 赵竹飞 (Zhao Zhu Fei), WIPO Case No. D2020-0691 and Vente-Privee.Com and Vente-Privee.com IP S.à.r.l. v. 崔 郡 (jun cui), WIPO Case No. D2021-1685). On the basis of the foregoing elements, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. page 5 C. Registered and Used in Bad Faith Given the fact that the disputed domain name contains the Complainant's trademarks for AQUAFINE in their entirety, and that the disputed domain name is almost identical to the Complainant's prior official domain name (the only difference being the reversal of the order of the terms "aquafine" and "uv"), the Panel finds that the Respondent clearly and consciously targeted the Complainant's prior registered trademarks for AQUAFINE. The Panel deducts from these efforts to consciously target the Complainant's prior registered trademarks that the Respondent knew, or at least should have known, of the existence of the Complainant's trademarks at the time of registering the disputed domain name. The Panel also considers the disputed domain name to be so closely linked and so obviously connected to the Complainant and its trademarks that the Respondent's registration of this disputed domain name points toward the Respondent's bad faith. In the Panel's view, these elements clearly indicate bad faith on the part of the Respondent, and the Panel therefore finds that it has been demonstrated that the Respondent registered the disputed domain name in bad faith. As to use of the disputed domain name in bad faith, the Complainant provides evidence that the disputed domain name directed to an active website, which was operated as an e-commerce website selling and offering seemingly unauthorized AQUAFINE-branded products for sale. Such website clearly displayed the Complainant's trademark AQUAFINE at the banner of the website and in the product descriptions, without the authorization of the Complainant, and prominently used the Complainant's official product images (thereby likely violating its copyrights) throughout such website, which suggested that the Respondent was affiliated or connected with the Complainant. The Panel concludes that the Respondent intentionally attracted Internet users for commercial gain to the disputed domain name, by creating consumer confusion between the disputed domain name and the Complainant's trademarks (see paragraph 4(b)(iv) of the Policy). However, on the date of this decision, the disputed domain name links to an inactive website. In this regard, the WIPO Overview 3.0, section 3.3 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." The Panel has reviewed all elements of this case, and attributes particular relevance to the following elements: the fact that the disputed domain name contains the entirety of the Complainant's trademark for AQUAFINE, the fact that the disputed domain name was used to offer seemingly unauthorized AQUAFINE-branded products for sale, the distinctiveness of the Complainant's trademarks and the unlikelihood of any good faith use to which the disputed domain name might be put by the Respondent. In these circumstances, the Panel considers that the passive holding of the disputed domain name by the Respondent constitutes use of the disputed domain name in bad faith. The Panel therefore finds that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith. Finally, the Respondent has failed to provide any formal response or evidence to establish its good faith or absence of bad faith. The Panel therefore finds that the Complainant has satisfied the requirements of the third requirement under the Policy. 7. Decision For 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, be transferred to the Complainant. /Deanna Wong Wai Man/ Deanna Wong Wai Man Sole Panelist Date: November 25, 2022
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