The Complainant is Davey Bickford, France, represented by Tmark Conseils, France.
The Respondent is 郑碧莲 (Zheng Bi Lian), China. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 25, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of both disputed domain names and providing the contact details. 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, 6, 14, 15 and 16, and the WIPO Supplemental Rules, Paragraph 4(d), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 3, 2021. In accordance with the Rules, Articles 17 and 49, the due date for Response was March 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 29, 2021. The Center appointed Matthew Kennedy as the sole panelist in this matter on April 5, 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 is a French company engaged in the development, design, manufacturing and marketing of high-tech electronic detonators and associated initiation systems. Its name is comprised of the surnames of its founders, Thomas Davey and William Bickford. The Complainant was registered in France with the name “Davey Bickford” on September 5, 1972. The Complainant promotes its products and services around the world. The Complainant owns trademark registrations for DAVEY BICKFORD in multiple jurisdictions, including international trademark registration number 1222740, registered on March 6, 2014, designating multiple jurisdictions including China, and specifying goods and services in classes 9, 13, 37, 39, 41 and 42. That trademark registration remains current. The Complainant has also registered the domain name The Respondent is an individual resident in China. The disputed domain names were registered on February 25, 2018. They resolve to a domain broker’s landing pages, which offer the disputed domain names for sale direct from the owner and invite interested Internet users to make an offer. On May 22, 2018, a party replied in English to an anonymous query sent by or on behalf of the Complainant, advising that the two disputed domain names could be bundled for a total of EUR 9,500 via an escrow service. According to information provided by the Complainant, panels in two previous proceedings under the Policy have found that the Respondent registered and/or used domain names in bad faith. See VIOOH Limited / JCDecaux SA v. 郑碧莲 (Zheng Bi Lian),WIPO Case No. DCN2019-0007 regarding The disputed domain names are strictly identical and, in any case, confusingly similar to the Complainant’s DAVEY BICKFORD trademark, company name and domain names. There is no element in the disputed domain names to dispel the confusion. The Respondent has no rights or legitimate interests in respect of the disputed domain names. DAVEY BICKFORD is not a generic term but, rather, a distinctive registered trademark. The Respondent is not known by the disputed domain names. The Complainant has never licensed or otherwise authorized in any way the Respondent to use DAVEY BICKFORD as domain names or as an element of a domain name or for any other purpose. There is and was no commercial or other relationship between the Respondent and the Complainant. The disputed domain names were registered and are being used in bad faith. Taking into consideration the protection and the Complainant’s constant use of the name DAVEY BICKFORD worldwide and notably in China, and bearing in mind that this name is a reference to the surnames of the Complainant’s founders, this demonstrates that the Respondent was aware of the Complainant’s rights pertaining to DAVEY BICKFORD at the time of registration of the disputed domain names. The Respondent’s website established at the disputed domain names is solely used to offer to sell the disputed domain names. When contacted by the Complainant, the Respondent offered to sell both disputed domain names for EUR 9,500. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary Issues A. Applicability of the Policy According to Article 2 of the Policy, dispute resolution service providers do not accept complaints regarding domain names with a registration term of over three years. In the present case, the Complaint was filed with the Center on February 24, 2021. At that time, the registration term of the disputed domain names was not over three years because both disputed domain names were registered on February 25, 2018. Accordingly, the Panel determines that the Policy is applicable to the Complaint. B. Language of the Proceeding According to Article 6 of the Policy and Article 8 of the Rules, the language of the proceeding shall be Chinese, unless otherwise agreed by the Parties or determined by the Panel in exceptional circumstances. The Complainant has requested that the language of the proceeding be English. Its main arguments are that the Respondent has sufficient capacity to understand and use English as evidenced by the Parties’ prior correspondence in English, and the fact that both disputed domain names redirect to websites in English, whereas the Complainant would bear considerable costs to translate all the submissions into and take part in the proceeding in Chinese or in both English and Chinese. The Respondent did not address the language of the proceeding. 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. The Panel shall also ensure that the proceedings take place with due expedition. Therefore, when considering the Complainant’s request, 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 the Complaint into Chinese. See Laure de Sagazan v. 刘岩,WIPO Case No. DCN2019-0010; and Forest Tosara Limited v. 王晓文 (Wang Xiao Wen),WIPO Case No. DCN2019-0008. The Panel observes that the Complaint was filed in English. The website to which the disputed domain names resolve invites offers in English, and a party who was apparently the owner of the disputed domain names (i.e., the Respondent) corresponded with the Complainant in English prior to receiving notice of this dispute, from which it may be inferred that the Respondent is able to understand and use that language. In any case, the Center sent the notification of the Complaint to the Parties in both Chinese and English but the Respondent has not expressed any interest in addressing either the language of the proceeding or the substance of the Complainant’s contentions. In these circumstances, the Panel considers that translation of the Complaint into Chinese would create an undue delay, whereas accepting the Complaint in its original language will not cause unfairness to either Party. Having considered all the circumstances, this Panel determines under Article 6 of the Policy and Article 8 of the Rules that the language of the proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed. 6.2 Substantive Issues Article 8 of the Policy provides that a complaint against a registered domain name shall be supported if the following conditions are fulfilled: (a) the disputed domain name is identical with or confusingly similar to the Complainant’s name or mark in which the Complainant has civil rights or interests; (b) the disputed domain name holder has no rights or legitimate interests in respect of the disputed domain name or major part of the disputed domain name; (c) the disputed domain name holder has registered or has been using the disputed domain name in bad faith. Article 7 of the Policy states that the Complainant and the Respondent shall bear the burden of proof for their own claims. A. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or Interests Based on the evidence submitted, the Panel finds that the Complainant’s name is “Davey Bickford” and that the Complainant has civil rights in the DAVEY BICKFORD mark. The disputed domain names both incorporate the Complainant’s name and DAVEY BICKFORD mark as their respective operational element, omitting only the space between the names for technical reasons. One disputed domain name includes a country code Top-Level Domain (“ccTLD”) extension (“.cn”). This element is generally disregarded in the comparison between a domain name and a trademark. See VIOOH Limited / JCDecaux SA v. 郑碧莲 (Zheng Bi Lian), supra. The other disputed domain name includes a Second-Level Domain (“2LD”) extension (“.com.cn”). This element is also generally disregarded in the comparison between a domain name and a trademark. See Facebook Technologies, LLC v.曹丛刚 (Cao Cong Gang),WIPO Case No. DCN2019-0015. Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to the Complainant’s name and a mark in which the Complainant has civil rights. The Complainant has satisfied the first element in Article 8 of the Policy. B. Rights or Legitimate Interests Article 10 of the Policy sets out the following circumstances which, without limitation, if found by the panel, may be evidence of the respondent’s rights to, or legitimate interests in, a disputed domain name, for the purposes of Article 8 of the Policy: - the Respondent uses of the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; - the Respondent has been commonly known by the [disputed] domain name, even if he has acquired no trademark or service mark rights; - the Respondent is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent of or commercial gain to misleadingly divert consumers. In the present case, the Respondent uses the disputed domain names – which are identical or confusingly similar to the Complainant’s name and mark – in connection with a landing page that offers them for sale. The Complainant submits that it has never licensed or otherwise authorized in any way the Respondent to use the Complainant’s name and mark in domain names or for any other purpose. The Panel does not find that the Respondent is making a use of the disputed domain names in connection with a bona fide offering of goods or services within the terms of Article 10(a) of the Policy. Nor is it a legitimate noncommercial or fair use of the disputed domain names within the terms of Article10(c) of the Policy. The Respondent’s name is listed in the Registrar’s WhoIs database as 郑碧莲 (Zheng Bi Lian), not the disputed domain names. There is no evidence that the Respondent has been commonly known by the disputed domain names within the terms of Article 10(b) 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 names. The Respondent failed to rebut that prima facie case because she did not respond to the Complainant’s contentions. 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 names. The Complainant has satisfied the second element in Article 8 of the Policy. C. Registered or Used in Bad Faith Article 9 of the Policy provides that certain circumstances may be evidence of the registration or use of a domain name in bad faith. The first of these is as follows: (a) The purpose for registering or acquiring the domain name is to sell, rent or otherwise transfer the [disputed] domain name registration to the complainant who is the owner of the name or mark or to a competitor of that complainant, and to obtain unjustified benefits; The disputed domain names were registered in 2018, many years after the Complainant registered its name in 1972, and also after the Complainant obtained registration of its DAVEY BICKFORD trademark. The disputed domain names incorporate the “Davey Bickford” name and the DAVEY BICKFORD mark as their respective operational elements. This name and mark do not contain dictionary words but are comprised of the surnames of the Complainant’s founders. The Panel considers it implausible that the Respondent registered the name and mark in the disputed domain names by coincidence. This finding is confirmed by the fact that the registration of the disputed domain names forms part of a pattern of conduct, in which the Respondent soon after registered at least three other domain names in bad faith, each of which, like the disputed domain names, contained a third party trademark combined with the 2LD “.com.cn” or the ccTLD “.cn”. See VIOOH Limited / JCDecaux SA v. 郑碧莲 (Zheng Bi Lian), supra; and iptiQ Life S.A. v. 郑碧莲 (Bi Lian Zheng), supra. In view of these circumstances, the Panel finds that the Respondent targeted the Complainant’s name and mark in bad faith when she registered the disputed domain names. The disputed domain names are used in connection with a landing page that merely offers them for sale direct from the owner. In response to a query regarding the disputed domain names, a person who was apparently the owner of the disputed domain names (i.e., the Respondent) offered to sell them both for a total of EUR 9,500. The Respondent has not denied that she sent that offer. Given the size of the amount quoted, it was very likely calculated to obtain a commercial benefit for the Respondent. In view of these circumstances, the Panel finds that the Respondent registered the disputed domain names for the purpose of selling the disputed domain name registrations to the Complainant who is the owner of the name and mark, or to a competitor of the Complainant, and to obtain unjustified benefits, within the meaning of Article 9(a) of the Policy. Therefore, the Panel finds that the Respondent registered and has been using the disputed domain names in bad faith. The Complainant has satisfied the third element in Article 8 of the Policy. 7. Decision For the foregoing reasons, in accordance with Articles 14 of the Policy and 40 of the Rules, the Panel orders that the disputed domain names Matthew Kennedy
Sole Panelist
Date: April 9, 2021
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