ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Hershey Chocolate & Confectionery LLC v. 程玉玲 (yu ling cheng) Case No. D2022-3374 1. The Parties The Complainant is Hershey Chocolate & Confectionery LLC, United States of America ("USA"), represented by Arnold & Porter Kaye Scholer LLP, USA. The Respondent is 程玉玲 (yu ling cheng), China. 2. The Domain Name and Registrar The disputed domain name is registered with Cloud Yuqu LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 9, 2022. On September 12, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 13, 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 14, 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 amended Complaint on September 16, 2022. On September 14, 2022, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 16, 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 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, and the proceedings commenced on September 20, 2022. In accordance with the Rules, page 2 paragraph 5, the due date for Response was October 10, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 11, 2022. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on October 25, 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 is a multinational company, manufacturing and selling chocolate and confectionery products and snacks as well as related products, which bear the HERSHEY'S marks (and variants on such marks). The Complainant has used the HERSHEY'S trademark in connection with candy, chocolate and confectionery products since 1894, and has grown into a global business, achieving billions of dollars of sales yearly under these trademarks throughout the USA and the world. The Complainant provides evidence that it owns a large international portfolio of trademark registrations for HERSHEY'S (word marks), for example USA trademark registration 54,041, for the word mark HERSHEY'S, registered on June 19, 1906; USA trademark registration 863,592, for the word mark HERSHEY'S, registered on January 14, 1969 and USA trademark registration 2,649,859 for the word mark HERSHEYS.COM, registered on November 12, 2002. 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 May 1, 2021. The Complainant submits evidence that the disputed domain name directed to an active website, which was operated as a commercial web page offering electronics and office supplies for sale to Internet users. However, the Panel notes that 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 HERSHEY'S, 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 are well known among consumers in the food industry and provides prior UDRP decisions (such as Hershey Foods Corporation and Hershey Chocolate & Confectionery Corporation v. DRP Services, WIPO Case No. D2003-0841) in which the respective panels have found that the Complainant's trademarks are well-known. Moreover, the Complainant provides evidence that the disputed domain name was linked to an active website, which was operated as a commercial web page offering electronics and office supplies for sale to Internet users. In this context, the Complainant claims that the Respondent was using the disputed domain name to cause, and opportunistically exploit inevitable Internet user confusion. The Complainant also contends that the Respondent registered the disputed domain name explicitly for the purpose of making an illegitimate or unfair use of the Complainant's marks by misleading and diverting Internet users who are seeking information about the Complainant and its products to the Respondent's for-profit web site, which, it claims, does not constitute legitimate use within the meaning of the Policy. The Complainant also contends that its HERSHEY'S trademarks are highly distinctive and famous, and that, given the international fame of those marks, it is inconceivable that the Respondent might have registered the disputed domain name, which is similar to or incorporating those marks, without knowing of it, and that it needs to be concluded that the Respondent registered the disputed domain name in order to take advantage of the Complainant's page 3 reputation and its trademarks. The Complainant finally also argues that that typosquatting in and of itself may constitute bad faith registration and use as a form of "brand hijacking". The Complainant essentially contends that the abovementioned use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes registration and use in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the 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 amended 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 his 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 some text 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: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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 is being used in bad faith. Based on the evidence and arguments submitted, the Panel's findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the mark HERSHEY'S, based on its longstanding use and registration of the same as a trademark. page 4 Moreover, as to confusing similarity of the disputed domain name with the Complainant's trademarks, the disputed domain name consists only of the Complainant's HERSHEY'S trademark, whereby the Respondent merely added the letter "r" before the "y" in the Complainant's HERSHEY'S trademark. The Panel concludes that such addition of the letter "r" constitutes an intentional and obvious misspelling of the Complainant's trademark (this practice is also called "typosquatting"), which moreover preserves the conceptual, aural and visual similarity with the Complainant's HERSHEY'S trademarks. In this regard, the Panel refers to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the "WIPO Overview 3.0"), section 1.9, which states: "a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element." The Panel also notes that the applicable generic Top-Level Domain ("gTLD") (".com" in this case) is viewed as a standard registration requirement, and may as such be disregarded by the Panel, see in this regard the WIPO Overview 3.0, section 1.11.1. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks, and finds that the Complainant has satisfied the requirements for 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 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 a 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 previously directed to a webpage which showed a clear intent on the part of the Respondent to obtain unlawful commercial gain from misleading Internet users by using an intentionally misspelled version of the Complainant's HERSHEY'S trademark in the disputed domain name for commercial gain, i.e. to offer electronics and office supplies to Internet users. 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 finds that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The Panel considers that by registering the disputed domain name, which the Panel sees as a clear attempt to typosquat a domain name confusingly similar to the Complainant's internationally famous trademarks, the Respondent deliberately and consciously targeted the Complainant's prior registered trademarks for HERSHEY'S. The Panel deducts from these efforts to deliberately target the Complainant's prior famous 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, which indicates that the Respondent acted page 5 in bad faith. Moreover, the Panel also refers to the WIPO Overview 3.0, section 3.1.4, which states "[p]anels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of 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 a commercial web page offering electronics and office supplies for sale to Internet users. The Panel concludes from these facts 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. This constitutes direct evidence of bad faith under 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 is an attempt of typosquatting, whereby the Complainant's trademarks for HERSHEY'S remain clearly recognizable in the disputed domain name, the high degree of distinctiveness and international fame 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 bad faith. The Panel therefore finds that it has been demonstrated that the Respondent has used the disputed domain name in bad faith. Finally, the Respondent has failed to provide any 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 4, 2022
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