WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Coloplast A/S v. 曹伟 (caowei)
Case No. D2021-0239
1. The Parties
The Complainant is Coloplast A/S, Denmark, represented internally.
The Respondent is 曹伟 (caowei), China.
2. The Domain Name and Registrar
The disputed domain name <coloplast.tech> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2021. On January 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 29, 2021, 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 January 29, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on February 1, 2021. 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 in English and Chinese, and the proceeding commenced on February 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 23, 2021. 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 Denmark and the owner of International registration No. 883011 (designating China) for the trade mark COLOPLAST (the “Trade Mark”), with a registration date of May 26, 2005, registered in respect of cosmetic and medical preparations and medical and surgical apparatus and instruments.
B. Respondent
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on January 2, 2021.
D. Use of the Disputed Domain Name
The disputed domain name was previously resolved to an English language website hosted by “www.escrow.com” and offering the disputed domain name for sale for USD 3,699 (the “Website”). As at the date of this Decision, it is not being used.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being 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(a), 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.
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 requested that the language of the proceeding be English, because the Respondent sent an English language email to the Complainant asking the Complainant to make an offer for the purchase of the disputed domain name. The Respondent did not file a response in this proceeding and did not make 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.
In light of the English language Website and the Respondent’s English language email correspondence with the Complainant, the Panel considers it is likely the Respondent is conversant in English. The Panel notes also that the Respondent has chosen not to contest this proceeding, and that all of the Center’s communications with the Parties have been sent in English and Chinese.
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. Disregarding the generic Top-Level Domain (“gTLD”) “.tech”, the disputed domain name is identical to the Trade Mark. The Panel therefore finds that the disputed domain name is identical to the 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. 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 he 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 has been offered for sale both via the Website and in the Respondent’s email correspondence with the Complainant.
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.
In addition, the Panel notes the nature of the disputed domain name, which carries a high risk of implied association (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 2.5.1).
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. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the Respondent’s offers to sell the disputed domain name via the Website and in the Respondent’s email correspondence with the Complainant, the Panel finds that bad faith registration and use has been made out under paragraph 4(b)(i) of the Policy.
The Panel also considers that, in all the circumstances, including the fact the disputed domain name is identical to the Trade Mark; and the Respondent’s offers to sell the disputed domain name, it is inconceivable that the Respondent was not aware of the Complainant and of the Complainant’s rights in the Trade Mark at the time of registration of 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 <coloplast.tech> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: April 6, 2021
