The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
The Respondent is zhang zengqi, China.
The disputed domain name <japanmichelin.com> is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2019. On September 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 8, 2019, 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 8, 2019 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 in English on October 10, 2019.
On October 8, 2019, 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 October 9, 2019. 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 in English and Chinese, and the proceedings commenced on October 15, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 4, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2019.
The Center appointed Douglas Clark as the sole panelist in this matter on November 13, 2019. 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.
The Complainant, founded in 1889, is a leading tire company in the world. It has its headquarters in Clermont-Ferrand, France and has presence in 171 countries. The Complainant has 114,000 employees and operates 69 manufacturing facilities in 17 countries, including two in China, which together produced 190 million tires in 2018. In relation to China, the Complainant has been present since 1988 and employs more than 6,000 people in the country. Its retail network comprises more than 4,000 sales outlets.
The Complainant first launched its Michelin Guide to help motorists plan their trips in the 1920s. In 1926, the Michelin Guide started rating and awarding stars to restaurants annually, giving them one to three stars. It rates over 30,000 establishments in over 30 territories across three continents which includes China and Japan, so far more than 30 million Michelin Guides have been sold worldwide.
The Complainant is the owner of various MICHELIN trademarks in the world, including European Union trademark No. 013558366 registered on April 17, 2015 in classes 9, 35, 38, 39, 41 and 42; International trademark No. 771031 registered on June 11, 2001 in classes 5, 7, 8, 9, 10, 11, 12, 16, 17, 18, 20, 21, 24, 25, 39 and, 42; International trademark No. 574577 which includes China, registered on May 6, 1991 in classes 6, 16, 18, 21 and, 25 and International trademark No. 348615, registered on July 24, 1968 in classes 1, 6, 7, 8, 9, 12, 16, 17 and 20.
The Complainant is also the owner of domain names <michelin.com>, registered on December 1, 1993 and <michelin.fr> registered on July 21, 2008.
The Respondent is an individual based in China.
The disputed domain name was registered on June 4, 2018 and does not resolve to an active page.
Identical or Confusingly Similar
The Complainant contends that the disputed domain name <japanmichelin.com> and the trademark MICHELIN are confusingly similar. The disputed domain name contains MICHELIN in its entirety as the distinctive part of the disputed domain name. The geographical term “japan” does not affect the similarity of the disputed domain name from the registered trademark.
No rights or legitimate Interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for MICHELIN. The Respondent, therefore, has no rights or legitimate interests in the disputed domain name. There is also no relationship between the Parties and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the MICHELIN trademark given its worldwide reputation and given its presence in the world including China and Japan. The Respondent acquired the disputed domain name to disrupt the business of the Complainant and/or to prevent the Complainant from reflecting its mark in a corresponding domain name.
The Respondent did not reply to the Complainant’s contentions.
The Language of the Registration Agreement is Chinese.
The Complainant requests that the language of the proceeding be English on the grounds that (i) the Complainant is a French Company and does not understand Chinese; and (ii) translating documents would cause unnecessary delays and expenses; and (iii) the disputed domain name includes only Latin characters; and (iv) English is the primary language for international relations today.
The Respondent did not respond to this request.
Paragraph 11(a) of the Rules provides that:
“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 Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either Chinese or English;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceedings lies with this Panel.
The Respondent did not respond to the Center’s preliminary determination.
This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a Respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceedings “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expense. This factor leads the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
The disputed domain name <japanmichelin.com> is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s MICHELIN mark in full with the geographical term “japan”. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark.
The first element of paragraph 4(a) of the Policy is therefore satisfied.
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Respondent has no business or any kind of relationships (i.e., licensor, distributor) with the Complainant. Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied.
Based on the evidence, the Panel has no hesitation in finding that the disputed domain name <japanmichelin.com> was registered in bad faith and is being used in bad faith.
The Panel finds that the Respondent could not have chosen and registered the disputed domain name in good faith without having been aware of the Complainant especially given its reputation and extensive presence worldwide in the tire industry and with its guidebook to the food and beverage industries.
The fact that the disputed domain name does not resolve to an active page does not preclude a finding that it has been used in bad faith. It is well established that passive use or non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding (WIPO Overview 3.0, section 3.3). See also Telstra Corporative Limited v. Nuclear Marshmallow, WIPO Case No. D2000-0003. Under all the circumstances of this case as described above, the Panel is satisfied that the Respondent registered the disputed domain name with the Complainant’s mark in mind and has used the disputed domain name in bad faith. The third element of paragraph 4(a) of the Policy is therefore satisfied.
For the above reasons, the third part of the paragraph 4(a) of the Policy is therefore satisfied.
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 <japanmichelin.com> be transferred to the Complainant.
Date: December 2, 2019
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