The Complainant is Advanced New Technologies Co., Ltd., Cayman Islands, United Kingdom, represented by Simmons & Simmons, United Kingdom.
The Respondent is Lei Guo, Spain. 2. The Domain Name, Registry and Registrar
The Registry of the disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2020. On July 8, 2020, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On July 9, 2020, the Registry 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 July 11, 2020 providing the registrant and contact information disclosed by the Registry, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 16, 2020. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the .eu Alternative Dispute Resolution Rules (the “ADR Rules”) and the World Intellectual Property Organization Supplemental Rules for .eu Alternative Dispute Resolution Rules (the “Supplemental Rules”). In accordance with the ADR Rules, Paragraph B(2), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 24, 2020. In accordance with the ADR Rules, Paragraph B(3), the due date for Response was September 4, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 14, 2020. The Center appointed Edoardo Fano as the sole panelist in this matter on September 21, 2020. 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 ADR Rules, Paragraph B(5). The language of the proceeding is English, being the language of the Registration Agreement, as per Paragraph A(3)(a) of the ADR Rules. 4. Factual Background The Complainant is Advanced New Technologies Co. Ltd, a Cayman Islands company subsidiary of Ant Group Co. Ltd, operating from 2014 the “Alipay” platform for online payment services, that was created in 2004 by the Alibaba Group, and owning several trademark registrations for ALIPAY, among which the following one: - European Union Trade Mark Registration No. 004469052 for ALIPAY, registered on November 26, 2010. The Complainant operates on the Internet at several websites, among which “www.alipay.com”, “www.alipay.com.hk” and “www.alipay.hk”. The Complainant provided evidence in support of the above. The disputed domain name The Complainant states that the disputed domain name Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain name or to use its trademark within the disputed domain name, nor is the Respondent commonly known by the disputed domain name. The Complainant asserts the Respondent is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The Complainant submits that the Respondent has registered the disputed domain name in bad faith, since the Complainant’s trademark ALIPAY is distinctive and well known, and it is using it as a website for advertising online payment businesses with reference to the Complainant’s ALIPAY trademarks to intentionally attract, for commercial gain, Internet users. The Complainant contends that the use of the disputed domain name qualifies as bad faith registration and use. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in its Complaint, the Complainant is required under Paragraph B(11)(d)(1) of the ADR Rules to demonstrate the following: (i) that the disputed domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by national law of a Member State and/or European Union law and; either (ii) that the disputed domain name has been registered by the Respondent without rights or legitimate interests in the name; or (iii) that the disputed domain name has been registered or is being used in bad faith. (i) Identical or Confusingly Similar to a name in respect of which a right or rights are recognized or established by national law of a Member State and/or European Union law The Panel finds that the Complainant is the owner of the registered trademark ALIPAY and that the disputed domain name It is well established in decisions under the ADR Rules that the country-code Top-Level Domain (“ccTLD”) “.eu” is typically ignored when assessing the similarity between a trademark and a domain name. The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to Paragraph B(11)(d)(1)(i) of the ADR Rules. (ii) Rights or Legitimate Interests The Respondent has failed to file a response. The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that it has no relationship or association with the Respondent, and has not authorized the Respondent to use or register in a domain name the ALIPAY trademark, that the Respondent is not commonly known by the disputed domain name and is not using it in connection with the offering of goods or services, or making a legitimate noncommercial or fair use of it. The disputed domain name is used for a website advertising online payment businesses with reference to the Complainant’s ALIPAY trademarks. The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name, and the Panel is unable to establish any such rights or legitimate interests on the basis of the evidence in front of it. The Panel could not find any evidence by referring to the examples listed in Paragraph B(11)(e) of the ADR Rules that (i) prior to commencing this proceeding the Respondent has used the disputed domain name in connection with the offering of goods or services or has made demonstrable preparations to do so; (ii) the Respondent as an undertaking, organization or natural person has been commonly known by the disputed domain name; or that (iii) the Respondent is making a legitimate and noncommercial or fair use of the disputed domain name, without intent to mislead consumers or harm the reputation of a name in which a right is recognized or established by national law and/or European Union law. On the contrary, the use of the disputed domain name for a website where consumers seeking services provided by the Complainant are fraudulently driven is very likely to constitute an infringement of the Complainant’s registered trademark. The Panel therefore finds that Paragraph B(11)(d)(1)(ii) of the ADR Rules has been satisfied. (iii) Registered or Used in Bad Faith According to Article 21(1) of the Regulation and Paragraph B(11)(d)(1) of the ADR Rules (ii) lack of rights or legitimate interests and (iii) registration or use in bad faith are alternative requirements. The Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name and therefore there is no need to consider also the bad faith element. In any case, the Panel finds that the content of the Respondent’s website at the disputed domain name, with the purpose of intentionally attempting to create a likelihood of confusion with the Complainant’s trademark as to the disputed domain name’s source, sponsorship, affiliation or endorsement, is an evidence of bad faith, pursuant to Paragraph B(11)(d)(1)(iii) of the ADR Rules. 7. Decision For the foregoing reasons, in accordance with Paragraph B(11) of the ADR Rules, the Panel orders that the disputed domain name Edoardo Fano 1 The Complaint, filed by the Complainant through its Cayman Islands, United Kingdom subsidiary, sought the transfer of the disputed domain name to Complainant’s affiliate Alipay (Europe) Limited S.A. As the Complainant’s affiliate Alipay (Europe) Limited S.A. is located in Luxembourg, a Member State of the European Union, it satisfies the general eligibility criteria for registration of the disputed domain name set out in Article 4(2)(b) of Regulation (EC) No. 733/2002 as amended by Regulation (EU) 2019/517.
Sole Panelist
Date: September 22, 2020
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