The Complainant is Lidl Stiftung & Co. KG, Germany, represented by HK2 Rechtsanwälte, Germany.
The Respondent is 蒋黎 (Leed Johnny, Johnny), China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2020. On November 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2020, 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 November 5, 2020 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 November 6, 2020. On November 5, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on November 6, 2020. The Respondent did not comment on the language of the proceeding. 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 of the Complaint, and the proceedings commenced on November 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 8, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 15, 2020. The Center appointed Joseph Simone as the sole panelist in this matter on January 4, 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, paragraph 7. 4. Factual Background The Complainant is a global discount supermarket chain based in Germany. It operates more than 10,000 stores in 29 countries with over 285,000 employees. The Complainant also offers various additional services such as mobile phone networks and travel services. The Complainant has an extensive global trademark portfolio of LIDL trademarks, which include International Registration No. 974355 for LIDL registered on May 9, 2008, which is also extended to China. The disputed domain name was registered on June 22, 2020. At the time of filing the Complaint, the Complainant provided evidence that the disputed domain name leads to a parking pay-per-click page, which contains several commercial links concerning “Lidl Supermarket” and “Food Delivery Stores”. 5. Parties’ Contentions A. Complainant The Complainant asserts that it has prior rights in the LIDL trademarks and that it is a leading player in its fields of business. The Complainant further notes that the disputed domain name registered and used by the Respondent is confusingly similar to the Complainant’s LIDL mark, and that the Complainant has been using The Complainant asserts that the disputed domain name resolves to a pay-per-click parking page, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. The Complainant also asserts that the Respondent is not commonly known by “lidl”, and that it has not authorized the Respondent to use the LIDL mark. The Complainant further asserts that the Respondent has registered and used the disputed domain name in bad faith, with an intent to exploit the Complainant’s trademarks and is acting for commercial gain by displaying a pay-per-click website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the Proceedings In accordance with paragraph 11 of the Rules: “[…] 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.” In this case, the Registration Agreement of the Registrar is in Chinese. Hence, the language of proceeding should be in Chinese. However, the Complainant filed the Complaint in English and requested that English be the language of the proceeding, asserting that English is the fairest neutral language for the proceeding. The Respondent was notified of each step of the proceeding in both Chinese and English but did not submit any responses or object to using English as the language of the proceeding. The Panel also notes that the Complainant has provided evidence that the disputed domain name resolved to a pay-per-click website in English. Given this, the Panel concluded that the Respondent likely understands English. As such, the Panel sees no reason to request the Complainant to resubmit the Complaint in Chinese. Accordingly, the Panel decides that the language of the proceeding shall be in English, and the Panel shall proceed with a decision in English. B. Identical or Confusingly Similar The Panel acknowledges that the Complainant has established rights in the LIDL trademark in many territories worldwide. Disregarding the “.co” country code Top-Level Domain (“ccTLD”), the disputed domain name is composed of the LIDL trademark in its entirety and the dictionary term “service”, the mere addition of which does not prevent a finding of confusing similarity. Thus, the disputed domain name should be regarded as confusingly similar to the Complainant’s LIDL trademark. The Panel therefore finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the LIDL trademark and in showing that the disputed domain name is identical or confusingly similar to its mark. C. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the complainant is required to present a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once the prima facie case is made, the respondent carries the burden of producing evidence in support of its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. The Complainant has not authorized the Respondent to use its trademark, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Thus, the Complainant has established its prima facie case with sufficient evidence. The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent does not have rights or legitimate interests in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy is evident in this case. Accordingly, the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. In the Panel’s assessment, the Respondent should be plainly aware of the Complainant’s marks when registering the disputed domain name, given their extensive prior use and fame. The Respondent has provided no evidence in support of his act of registering the disputed domain name, and there is also no evidence of any of the factors outlined in the passage above which may have weighed in favor of the Respondent. For example, there is no indication of a good faith attempt by the Respondent to prevent the appearance of the offending advertising links. Thus, absent evidence to the contrary, it is reasonable to assume that the Respondent was aware of the Complainant’s trademarks when he registered the disputed domain name. Given the foregoing, the Panel concludes based on the information and evidence presented that the Respondent’s primary motive in relation to the registration and use of the disputed domain name was to capitalize on, or otherwise take advantage of, the Complainant’s trademark rights, by creating a likelihood of confusion with the Complainant’s marks with the intent to unlawfully profit therefrom. The conduct described above falls squarely within paragraph 4(b)(iv) of the Policy and accordingly, the Panel concludes that the Respondent registered and is using the disputed domain name in bad faith pursuant to 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 Joseph Simone
Sole Panelist
Date: January 18, 2021
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