The Complainant is Le Duff Industries of Servon-Sur-Vilaine, France, represented by SCAN Avocats, France.
The Respondent is liuwenqi of Shaoyang, Hunan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with 22net, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2018. On September 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 29, 2018, 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 October 1, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same day, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant filed an amended Complaint and requested that English be the language of the proceeding on the same day. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on October 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 31, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 1, 2018.
The Center appointed Jonathan Agmon as the sole panelist in this matter on November 6, 2018. 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
The Complainant, Le Duff Industries (formerly named Bridor Holding) is a leading bakery and bread manufacturer, acting under the trademarks BRIDOR and BRIDOR DE FRANCE. The Complainant supplies its goods to well-known customers in the hotel and business industries, amusement parks such as Disneyland Paris, Eurostar, etc. The Complainant owns five factories worldwide and serves over a million customers daily.
The Complainant is the owner of several trademark registrations, among them the following BRIDOR trademark registrations:
- French trademark BRIDOR No. 1416167, registered on June 29, 1987;
- International trademark BRIDOR No. 524007, registered on June 27,1988;
- European Union semi figurative trademark BRIDOR No. 000088336, registered on April 1, 1996;
- International trademark BRIDOR No. 930721, registered on April 25, 2007.
The Complainant is also the owner of a number of domain names consisting or including its registered mark BRIDOR or its former name Bridor De France:
- registered on June 8, 1999;
- registered on December 18, 2012;
- registered on May 1, 2018;
- registered since April 14, 2011;
- registered on September 9, 2009.
The disputed domain name was registered on July 25, 2018.
Currently, the disputed domain name resolves to parking page. 5. Parties’ Contentions A. Complainant
The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s famous and registered mark BRIDOR because it contains the Complainant’s mark in its entirety. The disputed domain name only differs from the Complainant’s registered mark by the additional technical, suffix a country code Top-Level Domain (“ccTLD”) extension “.co”, which is the country code for Colombia. According to the Complainant this increases the likelihood of confusion with the Complainant’s rights as the disputed domain name is almost identical to the domain name owned by the Complainant’s subsidiary.
The Complainant also argues that the Respondent is not known under the BRIDOR mark and is not authorized by the Complainant to use the disputed domain name, which is associated with the Complainant or its registered mark. It had conducted a trademark search before several Intellectual Property Offices and found no record of registration by the Respondent. Therefore, argues the Complainant, the Respondent cannot be regarded as having rights or legitimate interest in the disputed domain name.
The Complainant claims that the Respondent registered and used the disputed domain name in bad faith as a simple Internet search prior to the registration would have shown that the Complainant is the owner of the BRIDOR mark and is well known under it. Currently the disputed domain name resolves to a parking page. In addition, the disputed domain name has been for sale at USD 3,999 since it’s registration, i.e., it was registered only to be sold.
For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding
Paragraph 11 of the Rules provides that:
“(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The language of the Registration Agreement for the disputed domain name is Chinese, as confirmed by the Registrar in its verification email to the Center of September 29, 2018.
The Complainant requested that the language of the proceeding be English.
The Respondent did not respond.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) The disputed domain name consists of Latin letters, rather than Chinese characters;
(ii) The disputed domain name resolves to a pay-per-click landing page which is in the English language, and provides links to websites in the English language;
(iii) The Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language;
(iv) The Respondent did not object to the Complainant’s request that English be the language of the proceeding.
Upon considering the above, the Panel determines that English be the language of the proceeding. 6.2. Substantive Issues A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name integrates the Complainant’s BRIDOR trademark in its entirety. The disputed domain name and the Complainant’s trademark differ in the addition of the standard suffix “.co” which is a ccTLD for Colombia.
The addition of the top-level domain extension is irrelevant to determine whether the disputed domain name is identical or confusingly similar to the registered mark (see Windrock Inc. v. WhoisGuard, Inc. Aaron ScotWIPO Case No. DCO 2018-0016).
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to its registered mark. B. Rights or Legitimate Interests
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Panel finds that the Complainant has established a prima facie case in this regard since the Complainant is the owner of the BRIDOR mark and has not licensed or otherwise permitted the Respondent to use the Complainant’s trademarks or a variation thereof. UDRP panels found that in the absence of any license or permission from the complainant to use its trademark, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed (Groupe Auchan v. Gan Yu,WIPO Case No. D2013-0188; LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138). The Panel also finds that the term “bridor” is unique and in view of the Complainant’s rights there is no contemplated bona fide or legitimate use the Respondent can claim. The Respondent is also not known by the disputed domain name.
The Respondent has not submitted any Response to the Complaint and did not provide any explanation or evidence to show any rights or legitimate interests in the disputed domain name sufficient to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned a registration for the BRIDOR trademark since the year 1987. As the trademark has been long registered prior to the registration of the disputed domain name it is suggestive of the Respondent’s bad faith in these circumstances (see Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735).
The evidence provided by the Complainant shows that the disputed domain name resolves to a pay-per-click parking page. The page offers links to websites mostly unrelated with the bread and food industry. The use of a pay-per-click offering links that capitalize on the complainant’s mark and which may mislead Internet users has been held to not represent a bona fide offering by the respondent. (See WIPO Overview 3.0, section 2.9).
In this case, the Respondent is also offering the disputed domain name for sale on the website to which the disputed domain name resolves to. While offering a domain name for sale is not an indication of bad faith, the offering of a disputed domain name for sale under a website which offers goods or services that capitalizes on the Complainant’s mark at the same time is yet another indication of bad faith registration and use of a disputed domain name. In this case, the evidence shows that the offer for sale of the disputed domain name was made from the moment the disputed domain name was registered by the Respondent suggesting that the disputed domain name was bought to be sold to those interested in capitalizing on the Complainant’s trademark.
Moreover, the mark BRIDOR is fancy and has no meaning in the English language. The distinctiveness of the Complainant’s trademark further supports the finding that the Respondent was targeting the Complainant. It is implausible that the Respondent would have registered the disputed domain name without knowledge of the Complainant and its rights and given that the Respondent failed to submit a response explaining why it has chosen to register and use the Respondent’s trademark, the Panel is convinced that the Respondent has registered and used the disputed domain name in bad faith. (See, Decathlon SAS v. Chen Boxin,WIPO Case No. DCO2017-0010)
Under the specific circumstances of this case and based on the evidence presented to the Panel, including the registration of the disputed domain name long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name, the evidence suggesting the Respondent registered and is using the disputed domain name in bad faith and the implausibility of any good faith use to which the disputed domain name may be put, the Panel draws the inference that the disputed domain name was registered and is being used in bad faith.
Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy. 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.
Jonathan Agmon
Sole Panelist
Date: November 21, 2018
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