WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AXA S.A. v. Information Privacy Protection Services Ltd. / Mahan
Case No. D2017-2427
1. The Parties
The Complainant is AXA S.A. of Paris, France, represented by Selarl Candé - Blanchard - Ducamp, France.
The Respondent is Information Privacy Protection Services Ltd. of China / Mahan of Eerduosi, Neimenggu, China, self-represented.
2. The Domain Name and Registrar
The disputed domain name <axaart.com> 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 December 7, 2017. On December 8, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 11, 2017, 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 December 15, 2017 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 amendment in English to the Complaint on December 15, 2017.
On December 15, 2017, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed, on December 15, 2017, its request in the Complaint that English be the language of the proceeding. The Respondent requested that Chinese be the language of the proceeding on December 16, 2017.
The Center verified that the Complaint together with the amendment to 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 and 4, the Center formally notified the Respondent in both English and Chinese of the Complaint, and the proceeding commenced on December 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2018. The Response was filed with the Center on December 19, 2017 and December 29, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 31, 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
A. Complainant
The Complainant is a company incorporated in France, and is a leading global provider of insurance, savings and asset management services under the trade mark AXA (the "Trade Mark").
The Complainant first commenced use of the Trade Mark in 1985, and is the owner of numerous registrations in jurisdictions around the world for the Trade Mark, including international registration No. 490 030, with a registration date of December 5, 1984; and Chinese registration No. 1 155 921, with a filing date of January 10, 1997.
The Complainant is also the owner of European registration No. 2 158 475 for the trade mark AXA ART (the AXA ART Trade mark"), with a filing date of March 20, 2001. A subsidiary of the Complainant has provided specialised art and collectibles insurance services in 26 countries under the AXA ART Trade Mark since 1999, including in China and Hong Kong, China and including on its website at "www.axa-art.com".
B. Respondent
The Respondent is an individual resident of China.
C. The Disputed Domain Name
The disputed domain name was registered on May 16, 2014.
D. The Website at the Disputed Domain Name
The disputed domain name does not resolve to an active website.
5. Parties' Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark and the AXA ART Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
B. Respondent
The Respondent contends that he or she is an art lover who registered the disputed domain name in order to set up a niche website in the area of art ecology; that the disputed domain name is an abbreviation for "a x area art"; that the Respondent's website has been in the planning stage since the disputed domain name was legally registered in 2014; that the Complainant has not registered "axaart" as a trade mark and the Complainant does not have exclusive rights in the 3 letter word AXA, as there are many other persons who have registered and used the same 3 letter term in various fields; that the Respondent never tried to sell or transfer the disputed domain name for commercial gain; that the Respondent is not related with the Complainant's business; and that the Complaint is unfair and overbearing.
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. However, 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 order 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.
The Complainant has requested that the language of the proceeding be English, on the grounds:
1. The landing page for the disputed domain name contains the English language wording "The website is coming soon!"; and
2. The Respondent has registered several other domain names containing English language words pertaining to art, and the websites to which several of these domain names are resolved are in English.
The Respondent has requested that the language of the proceeding be Chinese, on the grounds:
1. The Respondent can only understand Chinese; and
2. The Respondent cannot fully understand the meaning of the Complaint, even with the assistance of translation software.
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.
The Panel does not consider that the landing page for the disputed domain name is sufficient evidence to demonstrate the Respondent is conversant in English.
The Panel does however consider that the Respondent's several English language websites indicate that the Respondent is conversant in English. The Respondent has not made any submissions, in the Response or otherwise, to counter the Complainant's assertions in the Complaint regarding the Respondent's various English language websites. The Panel also notes that the Respondent has been able to file a (Chinese language) Response, notwithstanding the Respondent's claims that he or she does not understand English. 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 determines under paragraph 11(a) of the Rules that:
1. It will accept the filing of the Complaint in English;
2. It will accept the filing of the Response in Chinese; and
3. It will render this Decision in 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
Whether or not any other persons might possess registered or unregistered trade mark rights comprising the letters "axa" (or similar signs) is immaterial, for the purposes of the first element under paragraph 4(a) of the Policy.
The Panel finds that the Complainant has rights in the Trade Mark and in the AXA ART Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 1.7) together with the non-distinctive word "art". Excluding the Top-Level Domain ("TLD") ".com", the disputed domain name is confusingly similar to the Trade Mark.
The disputed domain name incorporates the entirety of the AXA ART Trade Mark. Excluding the TLD".com", the disputed domain name is identical to the AXA ART Trade Mark.
The Panel therefore finds that the disputed domain name is confusingly similar or identical to the Trade Mark and the AXA ART Trade Mark.
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 a respondent has rights or legitimate interests in a 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 a name 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark or the AXA ART Trade Mark. 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.
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 disputed domain name does not resolve to an active website. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and 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 does not find the Respondent's submissions regarding the Respondent's planned use of the disputed domain name in order to set up a niche art ecology website convincing. On the Respondent's own case, the Respondent has made no use of the disputed domain name. The Respondent has put forward no evidence, other than a bare assertion, regarding the Respondent's planned use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and therefore finds that the requirements of paragraph 4(a)(ii) are met.
C. Registered and Used in Bad Faith
Given the notoriety of the Complainant and of its Trade Mark, the fact the Respondent is, on the Respondent's own case, an art lover, the undisputed fact that the Respondent has registered several art related domain names, and the passive holding of the disputed domain name, the Panel has no hesitation in concluding the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Trade Mark and of the AXA ART Trade Mark at the time the Respondent registered the disputed domain name.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
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 <axaart.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: February 14, 2018
