The Complainant is Bollore, France, represented by Nameshield, France.
The Respondent is 黄嵘 (Huangrong), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2021. On August 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 30, 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 September 18, 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 on September 20, 2021.
The Center verified that the Complaint together with the amended 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 of the Complaint, and the proceedings commenced on September 22, 2021. In accordance with the Rules, Article 17 and 49, the due date for Response was October 12, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 22, 2021.
The Center appointed Yijun Tian as the sole panelist in this matter on October 29, 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 A. ComplainantThe Complainant, Bollore, is a company incorporated in France. Founded in 1822, the Complainant operates in transportation and logistics, communication and media, and electricity storage and solutions. The Complainant is one of the 500 largest companies in the world.
The Complainant is the exclusive owner of numerous BOLLORE trademarks worldwide, including the Chinese Trademark 波洛萊 (BOLLORE ) registered on March 14, 2019 (the Chinese Trademark registration number 30348686), the International Trademark BOLLORE registered on December 11, 1998 (the International Trademark registration number 704697), and the International Trademark BOLLORE AFRICA LOGISTICS registered on January 14, 2009 (the International Trademark registration number 1008325).
The Complainant has also registered numerous domain names which contain the BOLLORE trademark, such as
The Respondent is 黄嵘 (huangrong), China. The disputed domain name
The disputed domain name is identical to its trade mark and branded services BOLLORE AFRICA LOGISTICS. The disputed domain name includes the Chinese trademark BOLLORE in its entirety.
The Respondent has no rights or legitimate interests in respect of the disputed domain name or a major part of the disputed domain name.
The disputed domain name has been registered and been used in bad faith.
The Complainant requests for the transfer of the disputed domain name to the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Notice of the ProceedingHaving considered the records in the case file, the Panel is satisfied that the Center has discharged its responsibility under Article 5 of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint and that the failure of the Respondent to furnish a Response is not due to any apparent omission or inadequate communication by the Center.
6.2. Language of the ProceedingAccording 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 decided by the Panel in exceptional circumstances. The Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding.
According to Article 31 of the Rules, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case. The Panel shall also ensure that the proceedings take place with due expedition. Therefore, when exercising its discretion to use a language other than Chinese, the Panel has to exercise such discretion judicially in the spirit of equality, fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ abilities to understand and use the proposed language, time and costs. See Skydance Productions, LLC v. 重庆珈亨科技有限公司 (Chong Qing Jia Heng Ke Ji You Xian Gong Si),WIPO Case No. DCN2021-0001; Osram GmbH v. 尚弦 (xian shang),WIPO Case No. DCN2020-0025.
On record, the Respondent appears to be a Chinese resident and is thus presumably not a native English speaker. However, considering the following, the Panel has decided that English should be the language of the proceeding:
1) the disputed domain name includes Latin characters and particularly English words (“Africa” and “logistics”), rather than Chinese script;
2) the disputed domain name used to resolve to a website which was in both Chinese and English language, containing English words/phrases, such as “Products”, “About us”, “News”, and “(C)2016 Shanghai Tonix Chemical Co., Ltd. Copyright”;
3) the Center has notified the Respondent in Chinese and English of the proceeding, and the Respondent has not filed any Response.
Accordingly, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under Article 6 of the Policy and Article 8 of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.
6.3. Substantive IssuesArticle 8 of the Policy provides that a complaint against a registered domain name shall be supported if the following conditions are fulfilled:
(i) 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;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name or major part of the disputed domain name;
(iii) The Respondent has registered or has been using the disputed domain name in bad faith.
A. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or InterestsBased on the evidence submitted, the Panel finds that the Complainant has rights in the BOLLORE and BOLLORE AFRICA LOGISTICS marks. The disputed domain name
The disputed domain name also includes the country code Top-Level Domain (“ccTLD”) “.cn”, which is a technical requirement of domain name registration. The previous panels have disregarded the TLD part of the domain names, when assessing whether a domain name is identical or confusingly similar to the mark in issue. See Bollore v 崔隆, supra; Osram GmbH v. 尚弦 (xian shang), supra.
The Panel therefore holds that the disputed domain name is confusingly similar to the Complainant’s BOLLORE and BOLLORE AFRICA LOGISTICS marks, and the Complaint fulfils the first condition of Article 8 of the Policy.
B. Rights or Legitimate InterestsArticle 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:
(a) the Respondent use 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;
(b) the Respondent has been commonly known by the [disputed] domain name, even if it has acquired no trademark or service mark rights;
(c) 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.
Article 7 of the Policy provides that the Complainant and the Respondent shall bear the burden of proof for their own claims. Further, it is well established by previous panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut the complainant’s contentions. See 塞维斯马斯特有限责任公司 (The Servicemaster Company, LLC) and 特敏尼克斯国际合股有限公司 (The Terminix International Company Limited Partnership) v. 孙启峰,WIPO Case No. DCN2019-0005; Osram GmbH v. 尚弦 (xian shang), supra.
According to the Complaint, founded in 1822, the Complainant operates in transportation and logistics, communication and media, and electricity storage and solutions. It is also one of the 500 largest companies in the world. It has asserted registration and use of the registered trademarks BOLLORE (since 1998) and BOLLORE AFRICA LOGISTICS (since 2009) long before the Respondent’s registration of the disputed domain name
Moreover, the Respondent is not an authorized dealer of the BOLLORE branded products or services. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to the Respondent to produce evidence to rebut this presumption.
Based on the following reasons the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name:
1) There has been no evidence adduced to show that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. The Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “bollore” or the terms “bollore africa logistics” in the disputed domain name and in its business operation. There has been no evidence to show that the Complainant has licensed or otherwise permitted the Respondent to use the BOLLORE or BOLLORE AFRICA LOGISTICS marks or to apply for or use any domain name incorporating the BOLLORE or BOLLORE AFRICA LOGISTICS marks.
2) There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent has any registered trademark rights with respect to the disputed domain name. The Respondent registered the disputed domain name in 2021, long after the BOLLORE marks became internationally known. The disputed domain name is confusingly similar to the BOLLORE and BOLLORE AFRICA LOGISTICS marks.
3) There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, the disputed domain name used to resolve to the website of the Complainant’s competitor “Shanghai Tonix Chemical Co., Ltd.”, and it currently resolves to a website which is inactive.
Accordingly, the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of Article 8 of the Policy.
C. Registered or Used in Bad FaithArticle 9 of the Policy sets out four circumstances which shall be evidence of the registration or use of the disputed domain name in bad faith, namely:
(a) The purpose of registering or acquiring the [disputed] 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;
(b) The disputed domain name holder registers domain names in order to prevent owners of the names or marks from reflecting the names or the marks in corresponding domain names;
(c) The disputed domain name holder has registered or acquired the disputed domain name for the purpose of damaging the Complainant’s reputation, disrupting the Complainant’s normal business or creating confusion with the Complainant’s name or mark so as to mislead the public;
(d) Other circumstances which may prove the bad faith.
The Panel finds that the circumstances referred to in Article 9(c) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith.
The Panel finds that the Complainant has a widespread reputation in the BOLLORE and BOLLORE AFRICA LOGISTICS marks with regard to its products and services. As mentioned above, the BOLLORE and BOLLORE AFRICA LOGISTICS marks have been registered internationally since 1998 and 2009 respectively. The Complainant is one of the 500 largest companies in the world, and operates in transportation and logistics, communication and media, and electricity storage and solutions. The disputed domain name used to resolve to the website of the Complainant’s competitor “Shanghai Tonix Chemical Co., Ltd”.
It is not conceivable that the Respondent would not have had actual notice of the BOLLORE or BOLLORE AFRICA LOGISTICS marks at the time of the registration of the disputed domain name (in 2021). Thus, the Panel concludes that the disputed domain name was registered in bad faith.
As mentioned above, the disputed domain name used to resolve to the website of the Complainant’s competitor “Shanghai Tonix Chemical Co., Ltd.”, and it currently resolves to a website which is inactive. Thus, the Panel concludes that the Respondent has used the confusingly similar disputed domain name with the intention to attract, for commercial gain, Internet users to the Respondent’s website.
Given the reputation of the BOLLORE and BOLLORE AFRICA LOGISTICS marks, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with the Complainant, contrary to the fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website to which the disputed domain name resolved. In other words, the Respondent has, through the use of the confusingly similar disputed domain name, created a likelihood of confusion with the BOLLORE and BOLLORE AFRICA LOGISTICS marks so as to mislead the public.
The Panel therefore concludes that the disputed domain name was registered and is being used by the Respondent in bad faith. Such use of the disputed domain name is also disruptive in relation to the interests of the Complainant.
In summary, the Respondent, by choosing to register and use the disputed domain name, which is confusingly similar to the BOLLORE and BOLLORE AFRICA LOGISTICS marks, intended to ride on the goodwill of these trademarks in an attempt to exploit, for commercial gain, Internet users destined for the Complainant. In the absence of evidence to the contrary and rebuttal from the Respondent, the choice of the disputed domain name and the conduct of the Respondent as far as the website to which the disputed domain name resolved is indicative of registration and use of the disputed domain name in bad faith. The current non-use of the disputed domain name does not prevent a finding of bad faith in this case.
The Panel therefore holds that the Complaint fulfils the third condition of Article 8 of the Policy in respect of the disputed domain name.
7. DecisionFor the foregoing reasons, in accordance with Articles 14 of the Policy and 40 of the Rules, the Panel orders that the disputed domain name
Yijun Tian
Sole Panelist
Date: November 19, 2021
1 “http://bollore-africa-logistics.cn/”