The Complainant is ZV Singapore Pte. Ltd., Singapore, represented by Nameshield, France.
The Respondent is 卢祥萍, China.
2. The Domain Name and RegistrarThe disputed domain names
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2021. On October 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 22, 2021, 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.
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 Chinese and English of the Complaint, and the proceedings commenced on November 11, 2021. In accordance with the Rules, Article 17 and 49, the due date for Response was December 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 7, 2021.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on December 17, 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 BackgroundThe Complainant is part of a group of companies headquartered in France and operating in the fashion industry. The brand Zadig & Voltaire was launched in 1997 by designer Thierry Gillier, and has ever since been used intensively for ready-to-wear fashion, accessories and perfumes.
The Complainant owns a trademark portfolio protecting the mark ZADIG & VOLTAIRE, including, amongst others, the following trademark registrations, Chinese trademark registration G948734C registered since November 29, 2007 and Chinese trademark registration G907298G registered since September 15, 2006. The Complainant also provides evidence that it owns a portfolio of official domain names, including
The disputed domain names were both registered on October 9, 2021, and are linked to the same active website in English, which offers the disputed domain names for sale.
5. Parties’ Contentions A. ComplainantThe Complainant essentially contends that the disputed domain names are identical to its trademark for ZADIG & VOLTAIRE, that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names were registered or are being used in bad faith.
The Complainant provides evidence of its company and marketing materials, including the content of its official website. Moreover, the Complainant provides evidence that the disputed domain names are linked to active webpages where the disputed domain names are offered for sale. The Complainant essentially contends that such use does not confer any rights or legitimate interests onto the Respondent in respect of the disputed domain names, and constitutes use in bad faith.
The Complainant requests the transfer of the disputed domain names.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Preliminary Issue: Language of the ProceedingPursuant to Article 6 of the Policy, Article 8 of the Rules and Paragraph 18 of the WIPO Supplemental Rules, unless otherwise agreed by the Parties, or determined by the Panel under exceptional circumstances, the language of the administrative proceeding shall be Chinese.
The Complainant filed its Complaint in English, including a request that the language of the proceeding be English. On November 11, 2021, the Center formally notified the Respondent in Chinese and English of the Complaint, and of the commencement of the proceeding, including that the Complaint was filed in English. The Center also notified the Respondent in Chinese and English of its right to file a Response in either Chinese or English, and comment on the language of the proceeding in its Response. Nevertheless, the Respondent did not submit any Response or comment on the language of the proceeding in this administrative proceeding.
The present Panel, which is familiar with both English and Chinese, has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English, the lack of comment on the language of the proceeding and the lack of Response on the merits of the Respondent (the Panel notes that the Respondent was duly invited to respond in either Chinese or English); the fact that the disputed domain names contain the entirety of the Complainant’s trademark and that they are written in Latin letters and not in Chinese characters; the evidence produced by the Complainant which proves that the websites linked to the disputed domain names are only in English, from which the Panel deducts that the Respondent appears to be able to understand English; and the fact that Chinese as the language of the proceeding could lead to unwarranted delay of the proceeding and costs for the Complainant. In view of these exceptional circumstances, the Panel grants the Complainant’s request, and decides that the language of this proceeding shall be English.
6.2. Discussion and Findings on the MeritsThe Policy requires Complainant to prove three elements:
(a) the disputed domain names are identical or confusingly similar to the Complainant’s name or mark in which the Complainant has civil rights or interests;
(b) the Respondent has no rights or legitimate interests in respect of the disputed domain names or major part of the disputed domain names; and
(c) the Respondent has registered or has been using the disputed domain names in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
A. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or InterestsThe Panel finds that the Complainant has shown that it has valid civil rights or interests in the sign ZADIG & VOLTAIRE, based on its use and registration of the same as a trademark in several jurisdictions, including in China.
Moreover, as to whether the disputed domain names are identical or confusingly similar to the Complainant’s aforementioned trademark, the Panel finds that the disputed domain names consist of only the Complainant’s registered trademark ZADIG & VOLTAIRE, combined with the suffixes “.cn” and “.com.cn”, respectively. The applicable Top-Level Domain and Second-Level Domain (here “.cn” and “.com.cn” respectively) may be disregarded by the Panel under the first element test. Moreover, also the ampersand symbol may be disregarded by the Panel under the first element test, since this particular symbol cannot be used in the domain name system. Accordingly, the Panel finds that the disputed domain names are identical or confusing similar to the Complainant’s trademark in which the Complainant has civil rights or interests and the first element required by the Policy is fulfilled.
B. Rights or Legitimate InterestsOn the basis of the evidence and arguments submitted, the Panel finds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, is not a bona fide provider of goods or services under the disputed domain names and is not making legitimate noncommercial use or fair use of the disputed domain names. The Panel also notes that the Respondent is not commonly known by the disputed domain names. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent. However, no evidence or arguments have been submitted by the Respondent in reply.
Moreover, upon review of the facts, the Panel notes that the websites linked to both disputed domain names currently only display an invitation to submit financial offers for the sale of the disputed domain names, which cannot be considered as use of the disputed domain names, or a corresponding name, in connection with a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
Furthermore, the Panel finds that the nature of the disputed domain names, incorporating the Complainant’s trademark for ZADIG & VOLTAIRE in its entirety, carries a risk of implied affiliation and cannot constitute fair use as they effectively impersonate or suggest endorsement by the Complainant.
The Panel therefore considers that none of the circumstances of rights or legitimate interests envisaged by Article 10 of the Policy apply. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore finds that the Complainant has satisfied the requirements for the second element under the Policy.
C. Registered or Used in Bad FaithThe registration of the disputed domain names, which are almost identical to the Complainant’s trademarks, is clearly intended to mislead and divert consumers away from the Complainant’s official website, to the websites linked to the disputed domain names. Moreover, the Panel considers the disputed domain names to be so closely linked and so obviously connected to the Complainant and its trademarks that the Respondent’s use of these disputed domain names (incorporating such marks entirely) persuasively points towards the Respondent’s bad faith. Furthermore, given the distinctiveness and well-established fame of the Complainant’s trademarks, the Panel finds that the registration of the disputed domain names, which are almost identical to such trademarks, clearly targeted such well-known trademarks, and that the Respondent therefore knew, or at least should have known, of the existence of the Complainant’s trademarks. In the Panel’s view, the preceding elements clearly establish the bad faith of the Respondent in registering the disputed domain names.
As to use of the disputed domain names in bad faith by the Respondent, the disputed domain names currently link to the websites displaying an invitation in English to submit financial offers for the sale of the disputed domain names. This leads the Panel to conclude that the Respondent is using the disputed domain names to try to sell them to the Complainant, who is the owner of the corresponding trademark for ZADIG & VOLTAIRE, or to a competitor of the Complainant, and to obtain unjustified benefits through such sales. This constitutes direct evidence of bad faith of the Respondent under Article 9(a) of the Policy.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore finds that the Complainant has satisfied the requirements of the third element under the Policy.
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 names
Deanna Wong Wai Man
Sole Panelist
Date: December 31, 2021