The Complainant is Alienware Corporation of Miami, Florida, United States of America, represented by Triana, Uribe & Michelsen, Colombia.
The Respondent is Chen Sizhu c/o Dynadot Privacy of Chengdu, Sichuan, China / San Mateo, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Hangzhou E-Business Services Co., Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 18, 2011. On October 19, 2011, the Center transmitted by email to Hangzhou E-Business Services Co., Ltd. a request for registrar verification in connection with the disputed domain name. On October 20, 2011, Hangzhou E-Business Services Co., Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On October 27, 2011, the Center transmitted an email to the parties in both Chinese and English regarding the language of proceedings. On October 29, 2011, the Complainant confirmed its request that English be the language of proceedings. The Respondent did not comment on the language of proceedings by the specified due date.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 4, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 24, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 28, 2011.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 13, 2011. 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, paragraph 7. 4. Factual Background A. Complainant
The Complainant, Alienware Corporation, is a company incorporated in the United States of America.
The Complainant is the owner of registrations for the trade mark ALIENWARE in the United States of America, the European Union and several other countries (the “Trade Mark”). B. Respondent
The Respondent is an individual apparently with an address in China.
The disputed domain name was registered on March 8, 2011. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant is a computer company established in 1996 in the United States of America. Its business is the production of computers (laptops and desktops) designed for gaming and other graphically intense applications. The Complainant’s computers are sold mostly online through the Complainant’s website “www.m” which uses several different languages and targets consumers from countries and regions all around the world such as Norway, Australia, Mexico, Egypt, the Hong Kong SAR of China, Ecuador, Honduras, Lebanon and Indonesia. The Complainant’s domain name is a major marketing and commercialization tool in the Complainant’s business. The Trade Mark’s awareness and recognition among worldwide consumers is significant.
The disputed domain name is confusingly similar to the Trade Mark. It comprises the Trade Mark in its entirety.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The website to which the disputed domain name has been previously resolved offered for sale driver products of a third party company not affiliated with the Complainant, Lexmark, and also contained links to third party websites offering services relating to computers (the “Website”).
The disputed domain name has therefore been registered and used in bad faith, in order to attract users, for commercial gain, to the Website.
The Respondent has further offered to sell the disputed domain name to the Complainant for USD 5,000, an amount in excess of the Respondent’s likely registration costs for the disputed domain name, and this amounts to further evidence of bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese.
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. No agreement has been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) Electrical Appliance Co. Ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) The Respondent speaks English and is fluent in the English Language. The Complainant contacted the Respondent in August 2011 through a third party to make him an offer for the transfer of the disputed domain name. The Respondent requested the third party to make an offer for the disputed domain name, then the Respondent set a price for its transfer and the Respondent finally rejected the third party’s counter offer. All this correspondence was in English. In addition, the Complainant contacted the Respondent in English on September 23, 2011 through its lawyer, so as to request the transfer of the disputed domain name, and the Respondent replied to this letter in English rejecting the grounds of the Complainant’s claim and offering to sell the disputed domain name for USD 5,000;
(2) The disputed domain name is made out of the words “alien” and “ware”, both of them belonging to the English language, and the Website was in the English language;
(3) The Respondent’s registered address is located in the city of San Mateo, California, United States of America, where the English Language is spoken;
(4) Unlike the Respondent, the Complainant is not familiar with the Chinese language at all.
The Respondent did not file any submissions with respect to the language of the proceeding.
Hangzhou E-Business Services Co., Ltd. has transmitted to the Center its verification response confirming that the language of the registration agreement for the disputed domain name is Chinese.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432).
The Panel notes, for the reasons specified by the Complainant in its submissions regarding the language of the proceeding, it appears the Respondent is proficient in the English language (Expoconsult B.V. trading as CMP Information v. Roc Guan, WIPO Case No. D2008-1600; Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).
The Panel finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language (Finter Bank Zurich v. Shumin Peng, supra). The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) that the language of the proceeding shall be English. 6.2. Decision A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate by many years the date of registration of the disputed domain name.
The disputed domain name comprises the Trade Mark in its entirety.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark, and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organisation) have been commonly known by the domain name even if you have acquired no trade mark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.”
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by many years. There is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption (Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Complainant has filed evidence to suggest the Respondent has previously been using the disputed domain name in respect of a website purportedly offering for sale drivers of a third party company not affiliated with the Complainant, Lexmark, and also advertising third party sites in which the user may find services related to computers.
In all the circumstances, and given the Panel’s findings below in respect of bad faith, the Panel concludes that such conduct does not amount to a bona fide offering of goods or services.
Furthermore, as at the date of this decision, the Website has been taken down and the disputed domain name is not being used at all. Such passive use of a disputed domain name cannot give rise to any rights or legitimate interests.
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 is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Panel concludes that, in all the circumstances, the Respondent has registered the disputed domain name comprising the Trade Mark, without the authorisation or approval of the Complainant, in order to profit by attracting users to the Website. The Panel finds such use of the Trade Mark is clear evidence of bad faith.
Pursuant to paragraph 4(b)(i) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
“circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.”
The evidence suggests the Respondent, or someone connected to the Respondent, has offered to sell the disputed domain name to the Complainant for USD 5,000, a sum far in excess of the Respondent’s likely out-of-pocket costs incurred in registering the disputed domain name.
The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under both paragraph 4(b)(iv) and paragraph 4(b)(i) of the Policy.
Given the circumstances of this case, the Panel also considers the current passive use by the Respondent of the disputed domain name, and the failure of the Respondent to file a Response to the Complaint, amount to further evidence of bad faith (Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787).
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: December 20, 2011
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