The Complainant is Deutz AG, Germany, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
The Respondent is 郝晓章, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 25, 2021. On October 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 26, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint in English on October 28, 2021.
The Center verified that the Complaint together with the amendment to 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 16, 2021. In accordance with the Rules, Articles 17 and 49, the due date for Response was December 6, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 9, 2021.
The Center appointed Linda Chang as the sole panelist in this matter on December 20, 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 an engine manufacturer founded in 1864 in Germany and distributes diesel engines and engine components for agricultural machinery, marine propulsion, automobiles and construction equipment worldwide.
The Complainant is the owner of China trademarks No. 872557 for DEUTZ registered in class 7 on September 21, 1996, and No. 14132095 for DEUTZ and design registered in class 7 on July 14, 2015.
The Complainant owns a large number of domain names incorporating its DEUTZ trademark, for example,
The disputed domain name was registered on December 8, 2020. The disputed domain name resolves to a website purportedly offering for sale Deutz branded products and the products that are competitive with those of Complainant’s.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is confusing similar to the trademark DEUTZ as the added word “parts” is descriptive and could not distinguish the disputed domain name from the trademark DEUTZ.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name as the Respondent is not using the disputed domain name for a bona fide offering of goods or services.
The Complainant finally contends that the Respondent has registered and is using the disputed domain name in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Language of the ProceedingArticle 6 of the Policy and Article 8 of the Rules provide that the language of the proceeding shall be Chinese unless otherwise agreed by the Parties or decided by the Panel in exceptional cases.
The Complainant requested for English to be the language of the proceeding. Its arguments include, inter alia, that the Respondent is able to communicate in English, which is evidenced by the fact that the website under the disputed domain name is in the English language.
The Center’s notification of the Complaint email of November 16, 2021 in Chinese and English indicated that the Complainant had submitted the Complaint in English, and accordingly, the Respondent may submit any comments on the language of the proceeding in the Response. The Response may be filed in either Chinese or English.
The Respondent has not commented on the language of the proceeding nor has the Respondent filed any Response.
The Panel finds it reasonable to conclude that the Respondent is able to communicate in English for the following reasons:
(a) the disputed domain name is registered in Latin characters and comprises the English word “parts”;
(b) the website under the disputed domain name is wholly displayed in the English language; and
(c) the Respondent chose not to respond or object to the use of English as the language of the proceeding.
Though no agreement appears to have been entered into between the Complainant and Respondent regarding the language of the proceeding, the Panel views that using English as the language of the proceeding would not be prejudicial to the Respondent in its ability to articulate the arguments for the case. The Panel thus determines that the language of the proceeding shall be English and the decision will be rendered in English.
B. Identical or Confusingly Similar to the Complainant’s Name or Mark in which the Complainant has Civil Rights or InterestsBased on the trademark registrations provided by the Complainant, the Panel accepts that the Complainant enjoys rights in the DEUTZ trademark in China.
The disputed domain name differs from the Complainant’s trademark DEUTZ by the additional elements of a descriptive word “parts” and the country code suffix “.cn”.
The country code “.cn” is merely instrumental and could be disregarded in this case under the confusing similarity test under the Policy. The major part of the disputed domain name is “deutzparts”, consisting of “deutz”, and a descriptive word “parts”. Given the fact that the disputed domain name comprises the Complainant’s trademark DEUTZ in its entirety, the Panel concludes that adding the word “parts” in the disputed domain name does not eliminate the confusing similarity between the Complainant’s trademark and the disputed domain name and could not avoid a finding of confusing similarity under the Policy.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the DEUTZ trademark in which the Complainant has civil rights or interests. The Complainant has satisfied Article 8(a) of the Policy.
C. Rights or Legitimate InterestsThe Complainant has confirmed that the Respondent is not licensed nor authorized by the Complainant to use the DEUTZ trademark. As the Respondent failed to respond and rebut contentions of the Complainant, the Panel is satisfied that the Complainant has made a prima facie case to demonstrate that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel further finds that the Respondent’s use of the disputed domain name in resolving to a website offering for sale of purportedly Deutz branded products and the products that are competitive with those of the Complainant’s does not create rights or legitimate interests on the Respondent. Such use cannot be considered a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name.
The burden of production then shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name. The Respondent, however, did not rebut the Complainant’s contentions.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has satisfied Article 8(b) of the Policy.
D. Registered or Used in Bad FaithDEUTZ is a distinctive trademark that has no dictionary meaning in the Chinese or English languages. Given the distinctiveness and prior registration of the DEUTZ trademark, the Panel finds that the Respondent must be aware of the Complainant and the DEUTZ trademark when registering the disputed domain name. The Respondent’s offering of purportedly Deutz branded products via the disputed domain name further evidences that the Respondent had actual knowledge of the Complainant and the DEUTZ trademark at the time of registering the disputed domain name.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a website displaying products of both Deutz brand and competitive products. The Panel concludes that the Respondent is intending to trade upon the Complainant’s DEUTZ trademark in order to attract to its website Internet users looking for the Complainant and Deutz branded items. The Respondent is intentionally attempted to attract, for commercial gain, Internet users to the website to which the disputed domain name resolves, by creating a likelihood of confusion with the Complainant’s trademark DEUTZ as to the source, sponsorship, affiliation or endorsement of the website or products on the website. All these supports a finding of bad faith registration and use.
Accordingly, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant has satisfied Article 8(c) of 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 name
Linda Chang
Sole Panelist
Date: January 10, 2022