The Complainant is Piriform Software Limited, United Kingdom, represented by Štaidl Leška Advokáti, Czech Republic.
The Respondent is Chen Tai Lei, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 3, 2019. The following day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 8, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 12, 2019 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 April 12, 2019.
On April 12, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On the same day, 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, in English and Chinese, of the Complaint, and the proceedings commenced on April 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 8, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2019.
The Center appointed Matthew Kennedy as the sole panelist in this matter on May 23, 2019. 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 markets personal computer optimization software under the trademark “CCleaner”. The software was released in 2004 and has since been downloaded more than two billion times. The Complainant has obtained multiple trademark registrations in different jurisdictions, including European Union trademark registration number 007562002 for CCLEANER, registered on November 10, 2009, specifying computer software and other goods in class 9. That trademark registration remains current. The Complainant also uses its CCLEANER mark with a colored device consisting of the letter “c” and a broom (the “CCleaner logo”). The Complainant has registered the domain name that it uses in connection with an official website where it provides information about itself and offers its software for download. That official website displays a favicon consisting of the CCleaner logo.
The Respondent is an individual resident in China.
The disputed domain name was registered on September 5, 2018. It resolves to a website that displays an internal server error message. The website also displayed a favicon consisting of the Complainant’s CCleaner logo as recently as March 15, 2019. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical or confusingly to the Complainant’s CCLEANER mark. That mark is entirely reproduced in the disputed domain name.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence that the Respondent has been commonly known by the disputed domain name. The Complainant did not grant any licence or authorization to register or use the disputed domain name by the Respondent. The Respondent is using the Complainant’s trademark and logo without authorization which is illegal and unauthorized conduct. The disputed domain name is inactive.
The disputed domain name was registered and is being used in bad faith. The Respondent was clearly aware of the registration and use of the Complainant’s marks before the registration of the disputed domain name. The Respondent used the Complainant’s logo as a picture in the address bar of the browser. There is no plausible explanation for the Respondent to have selected the disputed domain name other than bad faith use within the terms of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
Paragraph 11(a) of the Rules provides that “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.” The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that English be the language of the proceeding. Its main arguments are that the website to which the disputed domain name resolves is in English, which demonstrates that the Respondent is very well familiar with that language. Further, translation of the Complaint would cause unnecessary delay.
Paragraph 10(b) and (c) of the Rules require the panel to ensure that the parties are treated with equality, that each party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
The Panel observes that the Complaint in this proceeding was filed in English. Despite the fact that the Center sent the Written Notice to the Respondent in English and Chinese, the Respondent has not expressed any interest in responding to the Complaint or otherwise participating in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed. 6.2 Substantive Issues
Paragraph 4(a) of the Policy provides that the complainant must prove each of the following elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(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
Based on the evidence submitted, the Panel finds that the Complainant has rights in the CCLEANER trademark.
The disputed domain name incorporates the CCLEANER trademark in its entirety. The only additional element is the country code Top-Level Domain (“ccTLD”) suffix of the territory of the Cocos Islands, “.cc”. A ccTLD suffix does not prevent a finding of identity or confusing similarity between a trademark and a domain name for the purposes of the first element of the Policy. See Vodafone Group PLC v. Wikipiedra S.L. / Jonathan Palma Ruz,WIPO Case No. DCC2010-0006. Consequently, the only distinctive element of the disputed domain name is the Complainant’s CCLEANER trademark.
Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(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 trademark 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 trademark or service mark at issue.
The disputed domain name resolves to a webpage that displays an error message. That is not a use in connection with a bona fide offering of goods or services, nor evidence of demonstrable preparations to make such a use, within the terms of paragraph 4(c)(i) of the Policy. Nor is it a legitimate noncommercial or fair use within the terms of paragraph 4(c)(iii) of the Policy.
The Respondent’s name, according to the Registrar’s WhoIs database, is “chen tai lei”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by paragraph 4(c)(ii) of the Policy.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that case because he did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith but these circumstances are not exhaustive.
With respect to registration, the Panel observes that the disputed domain name incorporates the Complainant’s CCLEANER trademark in its entirety, with no additional element besides a ccTLD suffix, which is a technical requirement of registration. The Complainant’s CCLEANER trademark is a coined word with no other meaning. The Complainant has acquired a significant reputation in its CCLEANER trademark in the software market due to its extensive use of that mark. The Respondent registered the disputed domain name in 2018, many years after the Complainant registered its trademark and acquired its reputation in it. The website to which the disputed domain name resolves displayed the Complainant’s CCleaner logo as a favicon. The Respondent gives no explanation for his choice of the disputed domain name. Therefore, the Panel considers it likely that the Respondent was aware of the Complainant and its trademark at the time that he registered the disputed domain name. The Panel finds that the Respondent registered the Complainant’s trademark in the disputed domain name in bad faith.
With respect to use, the Respondent uses the disputed domain name to resolve to a website that displays an error message. However, even passive use of a disputed domain name does not preclude a finding of use in bad faith. See Telstra Corporation Ltd v. Nuclear Marshmallows,WIPO Case No. D2000-0003. In the present dispute, the Complainant has acquired significant reputation in its CCLEANER trademark in the software market due to its extensive use of that mark. The disputed domain name is identical to the Complainant’s official website address, but for the TLD suffix. The website to which the disputed domain name resolves displayed the Complainant’s CCleaner logo as a favicon, which imitated the Complainant’s official website favicon. Delivery of the Written Notice of the Complaint was unsuccessful both at the Respondent’s contact facsimile and postal address. The Respondent gives no explanation of any proposed use of the disputed domain name. Given these circumstances, the Panel finds that the Complainant has discharged its burden of demonstrating that the disputed domain name is being used in bad faith.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of 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.
Matthew Kennedy
Sole Panelist
Date: May 27, 2019
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