The Complainants are Rosemount, Inc. of Chanhassen, Minnesota, United States of America and Emerson Electric Co. of St. Louis, Missouri, United States of America, represented internally.
The Respondent is Beijing ZhongYiHuaShi technology Co., Ltd of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2013. On November 7, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 8, 2013, 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. On November 8, 2013, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, the Complainants confirmed their request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding 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 in both Chinese and English, and the proceeding commenced on November 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 5, 2013. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on December 6, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 11, 2013. 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. Complainants
The Complainant Rosemount, Inc. is a company incorporated in the United States, a subsidiary of the Complainant Emerson Electric Co., (for the purposes of this proceeding the Panel will refer to both entities as the “Complainant”) and the owner of several trade mark registrations in the United States, Canada, Europe and China for the trade mark ROSEMOUNT (the “Trade Mark”). B. Respondent
The Respondent appears to be an entity based in China. C. The Disputed Domain Name
The disputed domain name was registered on April 1, 2011. D. The website at the Disputed Domain Name
The website at the disputed domain name appears to promote and offer for sale sensors in direct competition with those offered by the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant Rosemount, Inc. was founded in 1956. It has, since 1967, manufactured and sold, under the Trade Mark, sensors that measure pressure, temperature, level and flow, including wireless sensors and transmitters.
The disputed domain name is confusingly similar to the Trade Mark. It contains the Trade Mark in its entirety.
The Respondent has no rights or legitimate interests in the disputed domain name and has not been authorised by the Complainant to use the Trade Mark.
The disputed domain name has been used in respect of a website which promotes and offers for sale sensors in direct competition with those offered by the Complainant under the Trade Mark (the “Website”).
For all these reasons, the disputed domain name has been registered and used in 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) Requiring the Complainant to submit the Complaint in Chinese would cause undue delay and substantial further expense;
(2) The evidence suggests the Respondent understands English as the Website is an English language only website.
The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.
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 finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant 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) of the Rules that the language of the proceeding shall be English. 6.2 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by over 50 years.
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 non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in disputed domain name:
i) Before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or names corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) The Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the Respondent has acquired no trade mark or service mark rights; or
(iii) The Respondent is making a legitimate noncommercial or fair use of the disputed 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 over 50 years. The Panel finds on the record that 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 (see Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000 0624; and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the disputed domain name has been used in respect of the Website, which offers the same sensor products offered by the Complainant under the Trade Mark.
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 disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Respondent has been using the disputed domain name in respect of the Website, which has not been authorised by the Complainant, and which offers the same sensor products as those offered by the Complainant under the Trade Mark in several jurisdictions worldwide, including in China, where the Respondent is based. This is clear evidence of bad faith. The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
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 Rosemount, Inc.
Sebastian M.W. Hughes
Sole Panelist
Dated: December 23, 2013
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