ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION B.S.A. v. lin de Case No. D2023-3659 1. The Parties The Complainant is B.S.A., France, represented by Nameshield, France. The Respondent is lin de, China. 2. The Domain Name and Registrar The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot (the "Registrar"). 3. Procedural History The Complaint was filed in French with the WIPO Arbitration and Mediation Center (the "Center") on August 31, 2023. On August 31, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 1, 2023, 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 (Redacted for Privacy) and contact information in the Complaint. The Center sent an email communication to the Complainant on September 1, 2023, 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 French on September 1, 2023. On September 1, 2023, the Center informed the parties, in English and French, that the language of the registration agreement for the disputed domain name is English. On September 1, 2023, the Complainant confirmed its request that French 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"). page 2 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on September 14, 2023. In accordance with the Rules, paragraph 5, the due date for Response was October 4, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 5, 2023. A third party sent an English language communication to the Center on October 8, 2023. The Center sought clarification as to this person's relationship to the current proceedings; no further communications were received. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 13, 2023. 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 A. Complainant The Complainant is a company headquartered in France and part of the global Lactalis group of dairy companies. The Complainant has used the trade mark EVEIL (the "Trade Mark") for over 30 years in countries worldwide, including China, in relation to infant milk products. The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Mark, including International registration No. 605767 (designation including China), with a registration date of August 13, 1993. B. Respondent The Respondent is located in China. C. The Disputed Domain Name The disputed domain name was registered on June 22, 2023. D. Use of the Disputed Domain Name The disputed domain name was previously resolved to a Chinese language website with multiple links to gambling and pornography related websites (the "Website"). As at the date of this Decision, it is no longer resolved to any active website. 5. Parties' Contentions A. Complainant The 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. Respondent The Respondent did not reply to the Complainant's contentions. page 3 6. Discussion and Findings 6.1 Preliminary Issue: Language of the Proceeding The language of the registration agreement for the disputed domain name is English. Pursuant to the Rules, paragraph 11, 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. However, 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 (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.5.1). The Complainant has requested that the language of the proceeding be French, for the following reasons: (i) the disputed domain name consists of the French term "EVEIL" and the country code "FR" for France; (ii) the Complaint is written in French, but the Center informed the Respondent of the proceeding in English and afforded the Respondent the opportunity to respond in English; and (iii) the Complainant asks that the Complaint be in French for better understanding of the Parties. The Respondent has not taken any part in this 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. The Panel finds there is insufficient evidence in support of the conclusion that the Respondent (apparently located in China) is conversant in French. The Panel is however mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. Having considered all the matters above, the Panel determines that: (i) it will accept the filing of the Amended Complaint in French ; and (ii) it will render this Decision in English. 6.2 Substantive Elements of the Policy The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview 3.0, section 1.7), followed by the letters "fr" (separated by a hyphen). page 4 Where a relevant trade mark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests Paragraph 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 it 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 was previously resolved, for commercial gain, to the Website, containing links to pornography and gambling related websites; and as at the date of this Decision, it is no longer being used. 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. C. Registered and Used in Bad Faith In light of the manner of the Respondent's use of the disputed domain name referred to above; the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out pursuant to paragraph 4(b)(iv) of the Policy. The evidence suggests that the Respondent has targeted the Complainant in registering and using the disputed domain name; and that there cannot be any actual or contemplated good faith use of the inherently misleading disputed domain name by the Respondent. For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. page 5 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. /Sebastian M.W. Hughes/ Sebastian M.W. Hughes Sole Panelist Dated: October 27, 2023
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