1. Rights
The Complainant has shown that it owns registered rights over the trademark HUAWEI since 2000. The disputed domain name fully incorporates the Complainant's trademark followed by the suffix "-es", which is the usual abbreviation for Spain. According to paragraph 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (the “WIPO Jurisprudential Overview 3.0”), "[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element". In the instant case, the suffix "-es" is a geographical indication, which lacks distinctive character. It is therefore incapable of excluding a finding of confusing similarity of the disputed domain name with the earlier mark.
Thus, the Panel is satisfied that the first requirement under the Policy is met.
2. Absence of Rights or Legitimate Interests
While the overall burden of proof under the Policy proceedings rests on the Complainant, it is generally recognized that, in order to prove the respondent’s lack of rights or legitimate interest in the domain name, it is sufficient for the Complainant to make out a prima facie case to shift the burden of proof to the Respondent. This is so because proving a third party’s negative fact, such as the Respondent’s lack of rights or legitimate interest, would otherwise result in an almost impossible task for the Complainant.
In the instant case, the Complainant indicates that it is not linked to the Respondent in any manner whatsoever. Furthermore, the Respondent was never authorised to include the Complainant's trademark in the disputed domain name, nor to use this trademark on the corresponding website. The contact information provided at the bottom of the webpage to which the disputed domain name redirects is false, as demonstrated by the fact that the company registration number placed aside the name "Huawei ES" and the relevant address, correspond to those of a different company. Therefore, it does not appear that the Respondent is commonly known by the disputed domain name.
At the time of the filing of the Complaint, the Respondent was using the disputed domain name to access a website displaying the Complainant's trademarks prominently and offering for sale alleged Complainant's products at reduced prices. It is not known whether these goods are genuine or not; however, it is clear that by registering a domain name reproducing the Complainant's trademark followed by a geographical abbreviation, by displaying the Complainant's trademarks on its website and by pretending to act under the company name "Huawei ES", the Respondent has engaged in a fraudulent scheme designed to be deceptive and confusing, and an impersonation by the Respondent of the Complainant. This use of the disputed domain name cannot amount to a bona fide offering of goods and services or a legitimate non-commercial or fair use.
Pursuant to paragraph 5(f) of the Rules, if a Respondent fails to submit a Response, absent exceptional circumstances, the Panel must decide the dispute based on the Complaint. In the instant case, the Respondent could have rebutted the Complainant's arguments relating to its lack of rights or legitimate interests in the disputed domain name, but chose not to do so.
In view of the foregoing, the Panel is satisfied that the Complainant has proved that the Respondent lacks rights or a legitimate interest in the disputed domain name and that the second condition under the Policy is met.
3) Registration and use of the disputed domain name in bad faith
The Complainant submits that its HUAWEI trademark enjoys international reputation. In order to substantiate this claim it mentions that this trademark "has recently been recognized by the prestigious Forbes magazine in the 14th position of the World’s Best Employer in 2020 ranking, as well as in the 93rd position in the World’s Most Valuable Brands in 2020". However, no supporting evidence has been provided. In a UDRP proceeding, a Complainant is required to prove its allegations even if the Respondent fails to submit a response. Therefore, for the purpose of this decision, the Panel cannot consider the trademark HUAWEI as one enjoying international reputation. The Panel cannot even consider that the HUAWEI trademark is highly distinctive since the Complainant failed to submit any evidence in this regard. Thus, in evaluating whether the Respondent acted in bad faith when registering and using the disputed domain name, the Panel shall consider the HUAWEI trademark endowed with a normal degree of distinctive character.
Notwithstanding the above, the Panel finds that the Complainant is right when it asserts that the Respondent was well aware of the Complainant's trademark at the time of the registration of the disputed domain name. Indeed, the Respondent was using the disputed domain name to access a website prominently displaying the Complainant's trademark accompanied by its figurative element. At the bottom of the website was the mention of a Spanish company named "Huawei ES" with a Spanish address. As indicated above, this information is false. The website was used to sell alleged Complainant's products. In view of these circumstances, it is clear that the Respondent was aware of the Complainant's trademark at the time of the registration of the disputed domain name, and that it targeted the Complainant and its trademarks to disrupt Internet users looking for the Complainant in Spain, for its own profit. The Complainant sent several take down notices to the Respondent, which remained unanswered. Furthermore, it is likely that the Respondent provided false contact information at the time of the registration of the disputed domain name, due to the several incongruences contained in the relevant Whois information, as mentioned above.
For all these reasons, the Panel finds that the Respondent registered and used the disputed domain name in bad faith, to intentionally attempt to attract, for commercial gain, Internet users to its own website, by creating a likelihood of confusion with the Complainant's mark, as to the source, sponsorship, endorsement and affiliation of this website and related activity by the Respondent.
Hence, the Panel is satisfied that also the third and last condition under the Policy is met.
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