The Complainant is AgXplore International, LLC of Parma, Missouri, United States of America, represented by Polsinelli Shughart PC, United States of America.
The Respondent is Lei Tian Qiang of Zheng Zhou, He Nan, China.
The disputed domain name <agxpreen.com> is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 20, 2013. On February 21, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 22, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. On February 25, 2013, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On February 28, 2013, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on March 6, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2013. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on March 27, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on April 5, 2013. 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.
The Complainant is a company incorporated in the state of Missouri in the United States of America (“United States”). The Complainant claims common law rights in the unregistered trade mark AGXPLORE (the “Trade Mark”).
The Respondent is an individual apparently with an address in China.
The disputed domain name was registered on December 25, 2012.
The Complainant made the following submissions in the Complaint.
The Complainant has been using the Trade Mark continuously since January 21, 2001 in respect of agricultural fertilisers (the “Goods”). The Complainant advertises and sells the Goods under the Trade Mark in the United States, Bolivia, Turkey, the Dominican Republic, Colombia, China, Chile, Egypt and Canada. Its revenues from sales of the Goods were in excess of USD 10,000,000.00 in 2012. The Complainant’s website receives on average 1,750 hits per month. The Complainant spent approximately USD 250,000.00 in advertising the Goods in 2012 The Complainant has promoted the Goods via its “www.agxplore.com” website (the “Complainant’s Website”) continuously since January 2001.
The disputed domain name is confusingly similar to the Trade Mark. It comprises the first 3 letters of the Trade Mark together with the trade mark PREEN owned by a company which is not related to the Complainant, Lebanon Seaboard Corporation, a mark used in connection with the sale of weed killer products.
The Respondent has not been authorised to use the Trade Mark and has no rights or legitimate interests in the disputed domain name. The Respondent is using the disputed domain name in respect of a website that has been copied from and is nearly identical to the Complainant’s Website, but which offers for sale a competing fertiliser product, “Biopower”.
The Respondent is not commonly known by the Trade Mark, and is not making a legitimate noncommercial or fair use of the disputed domain name.
The Respondent has registered and used the disputed domain name in bad faith. The Respondent has intentionally registered and used the disputed domain name in order to divert traffic to its website for commercial gain.
The Respondent did not reply to the Complainant’s contentions.
The language of the Registration Agreement for the disputed domain name is Chinese.
Pursuant to the Rules, paragraph 11, 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. No agreement has been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.
Paragraph 11(a) 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 other words, it is important 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 (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) The disputed domain name is in Latin characters and is comprised of two English language trade marks;
(2) The Website is entirely in English;
(3) The contact information on the Website lists a Canadian address;
(4) The Complainant would be unfairly disadvantaged and would incur unnecessary expense if it were required to translate the Complaint and otherwise be represented in the proceeding using Chinese language.
The Respondent did not file any submissions with respect to the language of the proceeding and did not file a Response.
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 (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432).
It appears from the content of the Website that the Respondent is conversant in the English language (Expoconsult B.V. trading as CMP Information v. Roc Guan, WIPO Case No. D2008-1600; Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).
The Panel therefore finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant in the English language (Finter Bank Zurich v. Shumin Peng, supra). 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 unduly 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.
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
The Panel finds that the Complainant has rights in the Trade Mark acquired through use which predate the date of registration of the disputed domain name by over a decade.
UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).
The disputed domain name comprises the first three (and arguably most distinctive) letters of the Trade Mark, together with the trade mark of a third party used in respect of weed killer products which are similar to the Complainant’s fertiliser Goods. UDRP jurisprudence has long recognised that adding an unrelated third party trade mark to a complainant’s mark (or to a confusingly similar approximation of a complainant’s mark) does not serve to obviate the risk of confusion.
The Panel finds that the disputed domain name is confusingly similar to the Trade Mark.
The Panel therefore holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the 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.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by more than a decade. 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 (Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name is used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website which is a blatant copy of the Complainant’s Website and which features prominently the Trade Mark and offers for sale a competing fertiliser product. Such use cannot possibly amount to a bona fide offering of goods or services under the Policy.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:
By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Panel has no hesitation in concluding that the Respondent has registered and used the disputed domain name in order to attract Internet users to the Website for commercial gain, by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of the competing Biopower fertiliser product offered for sale on the Website.
For the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <agxpreen.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: April 22, 2013