ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Benda Bili v. 杨盼山 (Menghua Xia) Case No. D2023-4832 1. The Parties The Complainant is Benda Bili, France, represented by Nameshield, France. The Respondent is 杨盼山 (Menghua Xia), China. 2. The Domain Name and Registrar The disputed domain name is registered with West263 International Limited (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 21, 2023. On November 21, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 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 November 27, 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 English on November 27, 2023. On November 27, 2023, the Center informed the parties in Chinese and English, that the language of the registration agreement for the disputed domain name is Chinese. On the same day, the Complainant requested English to be the language of the proceeding. The Respondent did not submit any comment on the Complainant’s submission. 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 in English and Chinese of the Complaint, and the proceedings commenced on December 8, 2023. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2024. The Center appointed Andrew Sim as the sole panelist in this matter on January 16, 2024. 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 company specialising in ready-to-wear collections and accessories for women, and trades under the name “sezane”. The Complainant is the owner of the numerous trademarks comprising of the term “sezane”, including the International trademark SÉZANE (registration No. 1170876, registered on June 3, 2013). The Complainant also owns the domain name which was registered on April 3, 2003, to promote its brand. The disputed domain name was registered on November 14, 2023. The disputed domain name previously resolved to a website where the Complainant’s SÉZANE trademark was prominently displayed, and the clothes and accessories were offered for sale. At the time of filing the Complaint and drafting this decision, the disputed domain name is inactive. 5. Parties’ Contentions A. Complainant Firstly, the Complainant contends that the disputed domain name is confusingly similar to the Complainant's registered trademark and its associated domain name . Notably, the Complainant asserts that the disputed domain name includes in its entirety the Complainant's registered trademark. The addition of the term “vip” does not disregard the fact that the disputed domain name is confusingly similar. Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant asserts that the Respondent is not affiliated with nor authorised by the Complainant in any way and no licence or authorisation has been granted by the Complainant to the Respondent to use any of the Complainant's registered trademarks or apply for registration of the disputed domain name. Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. The Complainant asserts that its trademark SÉZANE has acquired distinctiveness over the years and the Respondent cannot be said to have innocently registered the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Procedural Matter - Language of the Proceeding The language of the registration agreement for the disputed domain name is Chinese. Under the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the
page 3 registration agreement, the language of the administrative proceedings shall follow the language of the registration agreement. The Complaint on the other hand requests that the language of the proceeding be in English, noting that the disputed domain name consists of English characters. The Respondent did not make submissions with respect to the language of the proceeding. Having considered relevant circumstances of the case (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1), the Panel determines under the Rules, paragraph 11(a), that the language of the proceeding shall be English. In particular, the Panel observes that the disputed domain name used by the Respondent is in English and the disputed domain name has previously resolved to an online store which is in English. This demonstrates that the Respondent had some familiarity in the English language. The Panel has further considered the likelihood of undue delay and prejudicial effect on the Complainant in asserting its rights should the proceeding be conducted in Chinese. 6.2 Substantive Matter - Three Elements Under the Policy, the Complainant must prove that: (i) the disputed domain name is identical or confusingly similar to a trademark in which it 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. A. Identical or Confusingly Similar The Complainant has established that it has rights in the registered trademark SÉZANE. Confusing similarity is determined by a straightforward side-by-side comparison of the relevant trademark and the disputed domain name. In the present case, the disputed domain name has incorporated the Complainant’s registered trademark SÉZANE (despite the accent), which the Panel finds it is sufficient in establishing confusing similarity in the present proceeding (WIPO Overview 3.0, section 1.7). The presence of a Top-Level Domain element “.com” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test (WIPO Overview 3.0, section 1.11.1). The Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights in accordance with the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel accepts the Complainant’s submissions that it has no connection with the Respondent and has not authorised the Respondent’s use of the Complainant’s trademark in any manner. Based on the available record, the Panel finds that the Complainant has made out a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name, and the burden of production of evidence shifts to the Respondent (WIPO Overview 3.0, section 2.1). The Respondent has not responded, and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name. Moreover, the disputed domain name previously resolved to a website where the Complainant’s SÉZANE trademark was prominently displayed without any disclaimer of the lack of relationship between the Complainant and the Respondent, and the clothes and accessories were offered for sale. The Panel finds that the use of the disputed domain name for impersonating the Complainant can
page 4 never confer any rights or legitimate interests on the Respondent. The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name in accordance with the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The disputed domain name was registered on November 14, 2023, long after the Complainant registered its trademark. Furthermore, the disputed domain name previously resolved to a website prominently displaying the Complainant’s trademark without any disclaimer of the lack of relationship between the Complainant and the Respondent and impersonating the Complainant. The Panel finds that the Respondent was aware of the Complainant’s trademark at the time the disputed domain name was registered. Further, evidence submitted by the Complainant indicates that the disputed domain name previously resolved to an online store which sold products at discounted prices. The Panel finds that the Respondent’s act was intended to create a likelihood of confusion with the Complainant’s mark as to the source of goods sold on the website, which itself is sufficient in establishing bad faith (Arla Foods Amba and Mejeriforeningen Danish Dairy Board v Mohammad Alkurdi, WIPO Case No. D2017-0391). Having considered the circumstances of the case, the Panel finds that the current non-use of the disputed domain name does not prevent a fining of bad faith. The Panel finds that the disputed domain name was registered and is being used in bad faith in accordance with the Policy, paragraph 4(a)(iii). 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. /Andrew Sim/ Andrew Sim Sole Panelist Date: January 30, 2024
Full & Egal Universal Law Academy