The Complainant is E. Remy Martin & Co, France, represented by Nameshield, France.
The Respondent is 蒋岱卫 (Jiang Dai Wei), China.
The disputed domain names <人头马.我爱你> [xn--gmq48wd16c.xn--6qq986b3xl] and <人头马路易十三.我爱你> [xn--ehqrqf6ibuhz2rin0dnjs.xn--6qq986b3xl] are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2020. On August 13, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 17, 2020, 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 August 18, 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 August 18, 2020. The Respondent did not comment on the language of the proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 14, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 15, 2020.
The Center appointed Rachel Tan as the sole panelist in this matter on September 24, 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 Rules, paragraph 7.
Based in France, the Complainant is a branch of the Rémy Cointreau Group whose business is producing and distributing alcoholic beverages worldwide. The Complainant specialises in the production of premium quality cognacs.
The Complainant uses the REMY MARTIN and LOUIS XIII trade marks to designate its collection of cognacs, such as REMY MARTIN VSOP, REMY MARTIN CENTAURE, LOUIS XIII and LOUIS XIII DE REMY MARTIN. “人头马” is the chosen Chinese version of the REMY MARTIN CENTAURE brand and was recognized by the Trademark Office of the State Administration for Industry & Commerce of the People’s Republic of China (as it was known then) as a well-known trade mark in China on January 15, 2010.
The Complainant owns a range of trade mark registrations for its 人头马/人頭馬and 路易十三 trade marks worldwide, including the relevant Chinese Registration No. 992742 for 人头马 registered on April 28, 1997, in class 33; International Registration No. 1075081 for 人头马 registered on March 30, 2011, which, inter alia, designates China in classes 30, 32, 33, 34, and 41; Chinese Registration No. 890641 for 人頭馬 registered on October 28, 1996, in class 33; International Registration No.1077223 for 人頭馬 registered on March 30, 2011, which, inter alia, designates China in classes 30, 32, 33, 34, and 41; Chinese Registration No. 9223392 for 路易十三 registered on March 21, 2012, in class 33 and; Chinese Registration No. 1053176 for LOUIS XIII DE REMY MARTIN 人頭馬路易十三 registered on July 14, 1997 in class 33.
The Complainant is the owner of numerous domain names that incorporate the terms “人头马” and/or “路易十三”, such as <人头马.com> registered on August 13, 2007, <路易十三.公司> registered on November 15, 2016 and <人头马路易十三.cn> registered on April 21, 2006.
The Respondent is 蒋岱卫 (Jiang Dai Wei), China.
The disputed domain names were registered on May 11, 2020 and do not at the date of this decision resolve to any active webpages.
The Complainant contends that the disputed domain name <人头马.我爱你> is identical to its 人头马 trade mark, and the disputed domain name <人头马路易十三.我爱你> is confusingly similar to its 人头马 and 路易十三 trade marks. The disputed domain names incorporate the Complainant’s 人头马 and 路易十三 trade marks in their entirety. The generic Top-Level Domain “.我爱你” is not sufficient to escape the finding that the disputed domain names are similar to the Complainant’s trade marks and does not change the overall impression of the designation as being connected to the Complainant’s trade marks.
The Complainant further alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent is not known as the disputed domain names nor related in any way with the Complainant. The Complainant does not carry out any activity for, nor has any business with the Respondent. Neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s trade marks, or apply for registration of the disputed domain names by the Complainant. Both disputed domain names are inactive since their registration and the Complainant contends that the Respondent did not make any use of the disputed domain names, and has made no demonstrable preparations to use the disputed domain names in connection with a bona fide offering of goods or services.
The Complainant finally asserts that the disputed domain names were registered and are being used in bad faith. The 人头马 and 路易十三 marks are widely known and recognized by Chinese speaking consumers all over the world, and have been used in China and other countries for so many years, that there is unlikely to be any legitimate right or plausible use by the Respondent. It is reasonable to infer that the Respondent has registered the disputed domain names with full knowledge of the Complainant’s trade marks. The disputed domain names are inactive, and this can be considered as passive holding by the Respondent, which falls within the concept of the disputed domain names being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6.1 Language of Proceeding
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions.
In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding for the following reasons:
(a) The choice of language is related to the combined fact that the English language is the language most widely used in international relations and is one of the working languages of the Center;
(b) In order to proceed in Chinese, the Complainant would have had to retain specialised translation services at a cost very likely to be higher than the overall cost of these proceedings. The use of Chinese in this case would therefore impose a burden on the Complainant which must be deemed significant in view of the low cost of these proceedings.
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 Panel having considered the circumstances finds that English shall be the language of this proceeding. The reasons are set out below.
(a) The Complainant is a company based in France. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur translation expenses;
(b) Even if the Respondent does not possess a sufficient command of English to understand the Complaint, the Panel also notes that there were ample opportunities for the Respondent to raise an objection. The Center notified the Parties in English and Chinese of the Complaint and of the Complainant’s request for English to be the language of the proceeding, but the Respondent did not protest against this request; and
(c) The Respondent has failed to participate in the proceeding and has been notified of its default.
The Complaint has been submitted in English. No foreseeable procedural benefit may be served by requiring Chinese to be used. On the other hand, the proceeding may proceed expeditiously in English. Accordingly, the Panel finds that English shall be the language of the proceeding.
6.2 Substantive Issues
The Panel is satisfied that the Complainant has adduced evidence to demonstrate its established rights in the 人头马 and 路易十三 trade marks.
The Panel notes the disputed domain names are comprised of the 路易十三 and/or 人头马 trade marks in their entirety. In cases where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, it is permissible for the Panel to disregard the Top-Level Domain (“TLD”) in the disputed domain name, i.e. “.我爱你”. It is accepted by UDRP panels that the practice of disregarding the TLD in determining identity or confusing similarity is applied irrespective of the particular TLD (including with regard to “new gTLDs”) and the ordinary meaning ascribed to a particular TLD would not necessarily impact assessment to the first element. See sections 1.11.1 and 1.11.2 of the WIPO Overview 3.0.
Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy.
In circumstances where the Complainant possesses exclusive rights to the 人头马 and路易十三 trade marks, whereas the Respondent seems to have no trade mark rights, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names, and the burden of production shifts to the Respondent. See section 2.1 of the WIPO Overview 3.0.
The Respondent has not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the terms “人头马” and “路易十三”. Further, there is no indication to show that the Respondent is commonly known by the disputed domain names or otherwise has rights or legitimate interests in any of them. In addition, the Complainant has not granted the Respondent a license or authorization to use the Complainant’s 人头马 and 路易十三 trade marks or register the disputed domain names.
For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant’s 人头马 and 路易十三 trade marks have been widely registered around the world. The disputed domain names were registered well after the registration of the Complainant’s 人头马 and 路易十三 trade marks. The terms “人头马” or “路易十三” are not merely names. Rather, the Complainant has extensively used and advertised 人头马 and 路易十三 as the Chinese trade marks for its REMY MARTIN and LOUIS XIII brands throughout Chinese speaking jurisdictions, including China where the Respondent is apparently located. Search results using the key words “人头马” and “路易十三” on the Baidu and Google search engines direct Internet users to the Complainant and its products, which indicate that exclusive connections between the 人头马 and 路易十三 trade marks and the Complainant have been established. As such, the Respondent either knew or should have known of the Complainant’s 人头马 and 路易十三 trade marks when registering the disputed domain names or has exercised “the kind of willful blindness that numerous panels have held support a finding of bad faith”. See eBay Inc. v. Renbu Bai, WIPO Case No. D2014-1693; Barclays Bank PLC v. Andrew Barnes, WIPO Case No. D2011-0874. Section 3.1.4 of the WIPO Overview 3.0 states that “mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith”. In this case, the disputed domain name completely incorporates the 人头马 and/or 路易十三 trade marks, meaning that bad faith registration of the disputed domain names can be presumed.
In addition, the Panel finds that the inactive use of the disputed domain names in this case would not prevent a finding of bad faith under the doctrine of passive holding. See section 3.3 of the WIPO Overview 3.0.
The Respondent has kept silent in the face of the Complainant’s allegations of bad faith. Taking into account these circumstances, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain names and, considering the Respondent’s lack of rights or legitimate interests, passive holding of the disputed domain names and by continuing to hold the disputed domain names, the Panel is led to conclude that the disputed domain names were registered and are being used in bad faith.
Therefore, the Panel finds that the Complainant has satisfied the third element under paragraph 4(a) of the Policy.
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 names, <人头马.我爱你> [xn--gmq48wd16c.xn--6qq986b3xl] and <人头马路易十三.我爱你> [xn--ehqrqf6ibuhz2rin0dnjs.xn--6qq986b3xl] be transferred to the Complainant.
Date: October 7, 2020
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