The Complainant is Osram GmbH, Germany, represented by Hofstetter, Schurack & Partner, Germany.
The Respondent is 陆智才 (Lu Zhi Cai), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2020. On November 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 19, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On December 2, 2020, the Complainant submitted the missing annexes to the Complaint. The Center verified that the Complaint satisfied the formal requirements of the China ccTLD Dispute Resolution Policy (the “Policy”), the China ccTLD Dispute Resolution Policy Rules (the “Rules”), and the WIPO Supplemental Rules for China ccTLD Dispute Resolution Policy and China ccTLD Dispute Resolution Policy Rules (the “WIPO Supplemental Rules”). In accordance with the Rules, Articles 5 and 6, and Articles 14 to 16, and the WIPO Supplemental Rules, Paragraph 4(d), the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on December 10, 2020. In accordance with the Rules, Articles 17 and 49, the due date for Response was December 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2021. The Center appointed Dr. Hong Xue as the sole panelist in this matter on January 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, Article 29. 4. Factual Background The Complainant operates the business on technology, particularly in lighting industry market, and owns the trademark OSRAM in many countries and regions. The Complainant has registered in China many marks over OSRAM, OSRAM & device and OSRAM 欧司朗, for example the registration No. 5452396 over the mark OSRAM granted on April 7, 2014. According to the Registrar’s verification response, the disputed domain name The Complainant contends that the disputed domain name The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name The Complainant contends that the disputed domain name The Complainant requests that the disputed domain name The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceeding According to Article 8 of the Rules, the language of the proceeding shall be Chinese, unless otherwise agreed by the Parties or decided by the Panel in the special circumstances. The Complainant has requested that the language of the proceeding be English and presented the reasons. The Respondent did not make any submissions in relation to the language of the proceeding even though the Center’s communications to this effect (as was the Notification of Complaint) were both in English and in Chinese. In accordance with Article 31 of the Rules, the Panel shall ensure that each Party be treated with equality and given a fair opportunity to present its case. Therefore, the Panel should take into account whether the Respondent is able to understand the language of the Complaint and whether the Complainant would be disadvantaged by having to translate all the submissions into Chinese, when assessing the Complainant’s request for changing the language of the proceeding. The Panel notes that the Complainant has submitted the Complaint in English and would bear considerable costs to translate all the submissions into and take part in the proceeding in Chinese. In absence of any opposition from the Respondent, the Panel determines under Article 8 of the Rules that English shall be the language of the proceeding. B. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or Interests Pursuant to the Policy, Article 8(1), a complainant must prove that a disputed domain name is identical or confusingly similar to a name or mark in which the complainant enjoys civil rights or interests. In line with such requirement, a complainant must prove its civil rights or interests in the relevant name or mark under the Chinese laws and the similarity between the disputed domain name and the complainant’s name or mark. Although the Complainant provides a large number of trademark registrations over the marks OSRAM that the Complainant owns, the Panel does not find any of them registered in China. Under the Policy, Article 8(1), the civil rights or interests that a complainant shall prove in a name or mark primarily refer to the rights or legitimate interests protected under the Chinese law. Only in the exceptional cases, the “foreign” rights in a mark may be considered for this purpose. The Panel notes that the Complainant shall bear the burden of proof according to the Policy. The Complainant is irresponsible for not providing the Chinese trademark registration information and wrongly attaching a copy of the Uniform Domain Name Dispute Resolution Policy (UDRP) as an annex to its Complaint. However, for the purpose of handling the case in an expedited way as stipulated in Article 31 of the Rules, the Panel looked into the Chinese Trademark Registration System and discovers that the Complainant has registered in China a large number of marks consisting of OSRAM, OSRAM & device or OSRAM 欧司朗, for example the Complainant registered the mark OSRAM (No. 5452396) on April 7, 2014. Therefore, before the registration of the disputed domain name on October 4, 2020, the Complainant has acquired the trademark registrations for the marks over OSRAM in China and enjoyed the trademark rights under the Chinese Trademark Law. The disputed domain name is Therefore, the Panel finds that the Complainant has proven the element required by Article 8(1) of the Policy. C. Rights or Legitimate Interests The Complainant asserts, and provides evidence to demonstrate, that the Respondent has no rights or legitimate interests in the disputed domain name and, as stated above, the Respondent did not provide any information to the Panel asserting any rights or legitimate interests it may have in the disputed domain name It is apparent from the Complaint that there is no connection between the Respondent and the Complainant or its business and the Respondent is not authorized by the Complainant to use the OSRAM marks in any means. Article 10 of the Policy lists a number of circumstances which can be taken to demonstrate a respondent’s rights or legitimate interests in a domain name. However, there is no evidence before the Panel that any of the situations described in Article 10 of the Policy apply here. To the contrary, the lack of any Response leads the Panel to draw a negative inference. Therefore, and also in light of the Panel’s findings below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name The Complainant contends that the Respondent registered and is using the disputed domain name The Complainant proves that the Respondent’s website established at the disputed domain name, “www.osramcz.cn” contains links for various news contents. Given that the Complainant’s arbitrary mark OSRAM has been registered and used in the Chinese market years before the Respondent registered the disputed domain name, the Panel finds that the Respondent’s unauthorized acts of registration and use of the disputed domain name that is confusingly similar to the Complainant’s marks purport to imitate the Complainant’s marks and cause the initial confusion to the Internet users between the website of the disputed domain name and the Complainant’s marks and business. Such use may also disrupt the Complainant’s business. The Panel therefore finds it adequate to conclude that the Respondent registered and is using the disputed domain name in bad faith under the Policy, Article 9(3). The Complainant has successfully proven the element required by Article 8(3) of the Policy. 7. Decision For the foregoing reasons, in accordance with the Articles 14 of the Policy and 40 of the Rules, the Panel orders that the disputed domain name Dr. Hong Xue
Sole Panelist
Date: February 3, 2021
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