The Complainant is Antonio Lupi Design S.p.A., Italy, represented by Società Italiana Brevetti S.p.A., Italy.
The Respondent is 陈美梅 (Chen Mei Mei), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 3, 2021. On May 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 8, 2021, 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 May 12, 2021 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 May 14, 2021. On May 12, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On May 14, 2021, 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 proceeding commenced on May 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 8, 2021. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 18, 2021. 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 incorporated in Italy founded by Mr. Antonio Lupi, and a renowned designer and manufacturer of bathroom furniture marketed and sold under the trade mark ANTONIO LUPI (the “Trade Mark”) worldwide. The Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including International registration No. 745251, with a registration date of September 19, 2000; and Chinese registration No. 15569041, with a registration date of December 14, 2015. B. Respondent The Respondent is an individual resident in China. C. The Disputed Domain Name The disputed domain name was registered on October 24, 2019. D. Use of the Disputed Domain Name The disputed domain name has not been used for an 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. 6. Discussion and Findings 6.1. Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), 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. 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. The Complainant has requested that the language of the proceeding be English, and submits that the Respondent should be considered to know at least some English, because (1) the disputed domain name is in Latin script; (2) the official website of the Complainant is in English; and (3) the Respondent is the shareholder or authorised representative of three companies in China which have produced English language marketing materials. The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not file any submissions with respect to the language of the 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 notes that there is some evidence which suggests that the Respondent might be conversant in English, that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be 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 acquired through use and registration. Disregarding the country code Top-Level Domain (“ccTLD”) for Cocos (Keeling) Islands “.cc”, the disputed domain name is identical to the Trade Mark. The Panel therefore finds that the disputed domain name is identical to the Trade Mark and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. 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 he 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 has not been used for an active website. Furthermore, the Respondent is the legal representative of a company in China involved in the same industry as the Complainant, which company unsuccessfully opposed one of the Complainant’s applications for registration of its Trade Mark in China. 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. In addition, the panel notes that “.cc” is the ccTLD for the Cocos (Keeling) Islands, but there is no evidence before the Panel to suggest that the Respondent, a Chinese national, has anything to do with the Cocos (Keeling) Islands. 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 and that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Given the notoriety of the Complainant and of its Trade Mark in the bathroom furniture field; the distinctiveness of the Trade Mark; the fact the Trade Mark has no meaning in the Chinese language; the fact the disputed domain name is identical to the Trade Mark; the lack of any substantiated credible explanation from the Respondent; and the facts relevant to the unsuccessful trade mark opposition proceedings referred to in Section 6.2.B. above, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time he registered the disputed domain name. Furthermore, the non-use or passive holding of the disputed domain name would not prevent a finding of bad faith under the Policy. For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. 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 Sebastian M.W. Hughes
Sole Panelist
Dated: July 2, 2021
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