{
    "case_number": "CAC-UDRP-103449",
    "time_of_filling": "2021-02-03 09:32:57",
    "domain_names": [
        "BrushSync.com"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        "KONINKLIJKE PHILIPS N.V. "
    ],
    "complainant_representative": "Coöperatieve Vereniging SNB-REACT U.A.",
    "respondent": [
        "Zhongshan Warmth Intelligent Co., Ltd. (中山暖人智能科技有限公司 )"
    ],
    "respondent_representative": null,
    "factual_background": "The Complainant is a large and well-known manufacturer active in the area of healthcare products. The BRUSHSYNC registered trademark is used by the Complainant to refer to its goods that support the Complainant’s technology that links between the Complainant’s electric toothbrush handle and brush heads. Such technology uses an RFID chip included in the brush head. \r\n\r\nThe Respondent is a Chinese company that is in the oral care industry that markets its products under the brand name “Phoenix Smart”.\r\n\r\nThe disputed domain name, <brushsync.com>, was created on June 27, 2020, and is presently inactive.\r\n",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.",
    "no_response_filed": "PARTIES' CONTENTIONS:\r\n\r\nCOMPLAINANT:\r\n\r\nThe Complainant contends that the disputed domain name is confusingly similar to the BRUSHSYNC mark on the basis that the disputed domain name reproduces the entirety of the BRUSHSYNC mark and addition of the generic top-level domain name suffix (“gTLD”) “.com” does not change the overall impression of being connected to the BRUSHSYNC mark.\r\n\r\nThe Complainant also argues that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent is not affiliated with the Complainant nor did the Complainant license or authorize the Respondent to use the BRUSHSYNC mark. The Complainant further argues that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services. In addition, the Respondent is not commonly known by the disputed domain name. The Complainant also argues that the Respondent is using the disputed domain name for commercial gain to misleadingly divert consumers. The Complainant further asserts that although the disputed domain name is not active, the Respondent has used e-mails hosted on the disputed domain name to create a store on Alibaba, a Chinese e-commerce website, and that the disputed domain name and an e-mail hosted on the disputed domain name are listed on products that are sold on the store on Alibaba.\r\n\r\nThe Complainant further asserts that the disputed domain name has been registered and is being used in bad faith as the Respondent should have known of the Complainant’s BRUSHSYNC mark at the time of registration of the disputed domain name. The Complainant also asserts that the Respondent has registered the domain name primarily for the purpose of disrupting the business of the Complainant, which is a competitor of the Respondent. In addition, the Complainant asserts that the Respondent is attempting to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation, or endorsement of the Respondent’s website or location or of a product.\r\n\r\n\r\nRESPONDENT:\r\n\r\nThe Respondent asserts that it did not know of the BRUSHSYNC mark until it received the present UDRP dispute notification in respect of the disputed domain name, and that it had been using the disputed domain name in good faith.\r\n\r\nThe Respondent also argues that the disputed domain name had not been registered and used in bad faith. The Respondent asserts that the Complainant had failed to meet the standard of proof required. The Respondent further asserted that their use of the disputed domain name did not mislead consumers, and that the Respondent did not disrupt the Complainant’s business or created the possibility of confusion with the Complainant 's mark to attract internet users to its website or other online locations.\r\n",
    "rights": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).",
    "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).",
    "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).",
    "procedural_factors": "The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.\r\n\r\n\r\nPreliminary Issue: Language of Proceedings\r\n\r\nParagraph 11 of the Rules provides that:\r\n\r\n„(a) 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.”\r\n\r\nThe language of the Registration Agreement for the disputed domain name <brushsync.com> is Chinese. Although the Complainant argues that the English language agreement of the Administrator applies, it is clear from the Administrator’s response and the Registration Agreement provided in the Respondent’s evidence that the language of the Registration Agreement is Chinese.\r\n\r\n\r\nThe Complainant requested that, if the Registration Agreement were in any language other than English, the language of the proceeding be English for the following reasons:\r\n\r\n(i) the Respondent is familiar with English;\r\n\r\n(ii) the disputed domain name is in English; and\r\n\r\n(iii) that there would be unnecessary delay of the proceedings in ordering the Complainant to translate the complaint into Chinese.\r\n\r\n\r\nThe Respondent asserts that the language of the proceeding should be Chinese and that the proceeding should be terminated for the following reasons:\r\n\r\n(i) the language of the Registration Agreement is Chinese; and\r\n\r\n(ii) it is neither reasonable nor fair for the Complainant to request that the Respondent reply in English because the Respondent is only familiar with basic English and not English legal language.\r\n\r\nThe Panel observes that in this proceeding, the Complainant and the Amended Complain were filed in English, and the Response was also filed in English.\r\n\r\n\r\nThe Panel cites the following with approval: “Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time, and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl, WIPO Case No. DCC2006 0004).\r\n\r\nHaving considered the above factors, the Panel determines that English be the language of the proceeding. The Panel finds that Respondent appears to be familiar with the English language, taking into account their selection of the English-language trademark and the domain name in dispute, the usage of English in the Respondent’s online store on Alibaba, as well as the usage of English on the Respondent’s products. Although the Respondent argues that they are only familiar with basic English and not legal language, the Response filed by the Respondent shows that Respondent is able to full communicate and argue his position using the English language. Under these circumstances, ordering the Complainant to translate the Complaint into Chinese would unnecessarily delay the proceedings, especially in view of the fact that the Respondent has already filed its Response articulating its arguments well in the English language.",
    "decision": "Accepted",
    "panelists": [
        "Mr. Jonathan Agmon"
    ],
    "date_of_panel_decision": "2021-03-19 00:00:00",
    "informal_english_translation": "The Complainant is the owner of International Registration No. 1418893 for BRUSHSYNC registered on July 30, 2018 designating, amongst other jurisdictions, the European Union, China, Japan, Korea, and Singapore. In particular, the designation of China was notified on August 23, 2018, with the statement of grant of protection pronounced on January 21, 2019.",
    "decision_domains": {
        "BRUSHSYNC.COM": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}