I. Language of proceedings
According to paragraph 11 (a) UDRP Rules the language of proceedings is 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 language of the Registration Agreement is, according the Registrar Verification, Chinese. The complaint has been filed in English, however. The Complainant asserts that the Respondent is familiar with the English language. The Complainant argues that the Respondent's name is “McBao Media Inc.” in Latin characters that the domain names in dispute are registered in Latin script and are governed by the .com top level domain name.
The Respondent filed two emails as response in Chinese, however including Latin letters and information on the Complainant in English in the first mail. As the Respondent obviously refers to the content of the English text in its emails, the Panel concludes that the Respondent is capable of responding to the Complaint in English.
Thus, the Panel holds that the language of the proceedings shall be English.
According to § 11 (b) UDRP Rules the Panel ordered that any documents submitted in languages other than the language of the administrative proceeding be accompanied by a translation in whole or in part into the language of the administrative proceeding. Therefore, on 10 February 2016 the Panel ordered the Respondent to provide a translation of its response within 5 working days.
However, no response in English has been filed by the Respondent, timely.
According to § 8 of the UDRP Supplemental Rules, the Panel may disregard documents submitted in other languages than the language of proceeding even without requesting the translation. Thus, the Panel notified the Respondent on 10 February 2016 that it shall disregard its response in case it is not properly translated into English, timely.
II. The Complainant has, to the satisfaction of the Panel, shown the Domain Names are identical or confusingly similar to trademarks in which the Complainant has rights (within the meaning of paragraph 4(a)(i)of the Policy).
The Panel agrees with the Complainant that the disputed domain names are identical to the Complainant’s trademarks. Both distinctive terms are identical. As the Complainant said, the toplevel domain .com is to be neglected in this assessment.
III. The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the Domain Names (within the meaning of paragraph 4(a)(ii)of the Policy).
The Respondent has not filed an administratively compliant response. The Panel decided that the language of proceedings is English. As the Respondent has been prompted to provide a translation of its response and as the Respondent has not complied with this request, according to § 8 of the UDRP Supplemental Rules the Panel disregards any documents provided in Chinese or other languages. Thus, the Panel may draw such inferences therefrom as it considers appropriate (§ 14 (b) of the UDRP Rules). The Panel may accept the contentions of the Complainant as admitted by the Respondent.
No arguments why the Respondent could have own rights or legitimate interests in the disputed domain names, is at hand. The Panel accepts the conventions of the Complainant that the Respondent has no such rights or legitimate interests in the disputed domain names.
IV. The Complainant has, to the satisfaction of the Panel, shown the Domain Names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
The timing of the registration of the disputed domain names indicates Respondent’s bad faith in registering such domain names. It should be emphasized that the Respondent pretends not to be capable of providing its response in English; however, on the other hand the Respondent is obviously capable of applying for the disputed domain names within days after the trademarks of the Complainant identical to such domain names were published. The Panel has no reason to disbelieve the Complainant when it argues that this coincidence has its roots in the fact that the Respondent seems to monitor new trademark applications worldwide. Further, the Panel is convinced that it cannot be a coincidence that the Respondent filed for two domain names consisting of two trademarks of Complainant, newly applied for, within days. Complainant’s trademarks are not at all of descriptive nature, nor do they contain descriptive or generic terms.
Other than in Case 100286 “DYL.com” the disputed domain names have not been registered years before the trademarks came into existence. There is no indication that the Respondent has chosen the names freely and without reference to Complainant’s trademarks.
As the Complainant further stated, the concept of the domain names “being used in bad faith” is not limited to positive action, but rather incorporates inaction. At least in this case, the Panel agrees. According to § 4 (b) (i) – (iii) UDRP the circumstances of registering a domain name to, inter alia, sell it, to prevent the owner of a trademark from reflecting the mark in the corresponding domain name, provided, that one has engaged in a pattern of such conduct, or the registration for the primary purpose of disrupting the business of a competitor indicate registration and use in bad faith. Particularly, the pattern of conduct the Respondent entered into further indicates the use of the disputed domain names in bad faith. Very often, the domain name registration follows the trademark registration by trademark owners. Registering domain names identical to trademark applications even before they have matured to registrations, prevents trademark owners from reflecting their trademarks in a corresponding domain name and disrupts their business with respect to the products, the trademarks protect. Thus, the Panel holds that the Respondent has registered and has used the disputed domain names in bad faith.
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