Complainant is Mou Limited, United Kingdom (“UK”), represented by SILKA Law AB, Sweden.
Respondent is qi meng, xia men qi meng wang luo ke ji you xian gong si (厦门企盟网络科技有限公司), China.
The disputed domain name <mou-eur.com> is registered with Xin Net Technology Corp. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2019. On December 2, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 24, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint in English on December 26, 2019.
On December 24, 2019, the Center sent a communication to the Parties, in English and Chinese, regarding the language of the proceeding. On December 26, 2019, Complainant confirmed its request that English be the language of the proceeding. Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on January 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 17, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 29, 2020.
The Center appointed Yijun Tian as the sole panelist in this matter on January 29, 2020. 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.
Complainant, Mou Limited, is a company incorporated in London, UK. It is a well-known company providing footwear and accessories such as bags, wallets, hats and gloves for men, women and children (Annex 6 to the Compliant). Found in 2002, Complainant was has grown significantly in size since then, being stocked in boutiques and department stores worldwide as well as having a significant online presence and sales via Complainant’s website “www.mou-online.com” operated by Complainant’s authorized licensee. Complainant’s products are sold to customers across the world including China, where Respondent resides. Complainant also makes wholesale sales in many countries, including China.
Complainant has exclusive rights in the MOU and MOU related marks. Complainant is the exclusive owner of numerous MOU trademarks worldwide, including Chinese trademark registered on April 28, 2007 (Chinese trademark registration number 3933443), the UK trademark registered on June 15, 2007 (UK Trademark registration number 2432785), and International Trademark registered on April 28, 2009 (the International Trademark registration number 1005206) notably designating China (Annex 4 to the Complaint). Complainant also registered numerous domain names which contain the MOU trademark, such as <mou‑online.com> registered since January 26, 2006; <mou-boots.com> registered since April, 11, 2011; and <mouboots.us> registered since April 7, 2012 (Annex 5 to the Complaint).
Respondent is qi meng, xia men qi meng wang luo ke ji you xian gong si (厦门企盟网络科技有限公司), China. The disputed domain name <mou-eur.com> was registered by Respondent on October 21, 2019. According to the Complaint and relevant evidence provided by Complainant, the disputed domain name resolves to webpages offering for sale products bearing Complainant’s mark without any indication of Respondent’s relationship to Complainant (Annex 10 to the Complaint).
Complainant contends that the disputed domain name <mou-eur.com> is confusingly similar to Complainant’s MOU trademarks. The disputed domain name reproduces the MOU mark in its entirety. The mere additions of a hyphen and the descriptive word “eur” (which could either stand for geographical term Europe or Euros) are not sufficient to eliminate the confusing similarity.
Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant contends that the disputed domain name was registered and is being used in bad faith.
Complainant requests that the disputed domain name be transferred to it.
Respondent did not reply to Complainant’s contentions.
The language of the Registration Agreement for the disputed domain name <mou-eur.com> is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement. From the evidence presented on the record, no agreement appears to have been entered into between Complainant and Respondent to the effect that the language of the proceeding should be English. Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
(a) It is likely to be the same Respondent as in previous UDRP disputes and Respondent has never bothered to respond to any previous UDRP disputes.
(b) In the current case, the content of the active website is also in English and the disputed domain name includes Latin script words such as “eur” which further strengthens that Respondent is familiar with the English language.
(c) The proceeding will likely be put through unnecessary trouble and delay if Chinese were made the language of the proceeding and there would be no discernible benefit to the Parties or the proceeding in the circumstances may be gained by maintaining the default language of the proceeding.
Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
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 (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 language finally decided by the panel for the proceeding should not be prejudicial to either one of the Parties in its abilities to articulate the arguments for the case (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) further states:
“Noting the aim of conducting the proceedings with due expedition, paragraph 10 of the UDRP Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.
Against this background, panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” (WIPO Overview 3.0, section 4.5.1; see also L’Oreal S.A. v. MUNHYUNJA, WIPO Case No. D2003-0585).
On the record, Respondent appears to be a Chinese resident and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that Respondent may have sufficient knowledge of English. In particular, the Panel notes that, based on the evidence provided by Complainant, (a) the disputed domain name includes Latin characters “mou” and “eur” (which would possibly be abbreviation of English word “Europe” or “Euros”) rather than Chinese script; (b) the disputed domain name <mou-eur.com> resolves to website in the English language; (c) the Center has notified Respondent of the proceeding in both Chinese and English; and (d) the Center informed Respondent that it would accept a Response in either English or Chinese. The Panel has also taken into consideration the facts that Complainant is a company from UK, and Complainant will be spared the burden of working in Chinese as the language of the proceeding.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that English shall be the language of the proceeding, and the decision will be rendered in English.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
On the basis of the evidence introduced by Complainant and in particular with regard to the content of the relevant provisions of the Policy (paragraphs 4(a)-(c)), the Panel concludes as follows:
The Panel finds that Complainant has rights in the MOU marks acquired through registration. The MOU marks have been registered in UK and China since 2007, and registered as an international trademark covering China since 2009. The disputed domain name <mou-eur.com> comprises the MOU mark in its entirety. The disputed domain name only differs from Complainant’s trademarks by adding a hyphen, the suffix “eur”, and the generic Top-Level Domain (“gTLD”) suffix “.com” to the MOU marks. This does not eliminate the identity or at least the confusing similarity between Complainant’s registered trademarks and the disputed domain name.
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, 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).
Further, in relation to the gTLD suffix, WIPO Overview 3.0 further states: “The applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.” (WIPO Overview 3.0, section 1.11.1)
Thus, the Panel finds that disregarding the suffixes “-” and “eur”, as well as the gTLD suffix “.com”, the disputed domain name is otherwise identical to the MOU marks.
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) 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 Complainant’s trademarks.
The overall burden of proof on this element rests with Complainant. However, it is well established by previous UDRP panels that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to respondent to rebut complainant’s contentions. If respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG, DHL Operations B.V. v. Ma Shikai, WIPO Case No. D2008-0441; WIPO Overview 3.0, section 2.1 and cases cited therein).
Complainant has rights in the MOU marks in UK and China since 2007 and internationally (covering China) since 2009, which precede Respondent’s registration of the disputed domain name (in 2019). According to the Complaint, Complainant is a well-known company providing footwear and accessories such as bags, wallets, hats and gloves for men, women and children. Complainant was being stocked in boutiques and department stores worldwide as well as having a significant online presence and sales via Complainant’s website “www.mou‑online.com”. Complainant’s products are sold to customers across the world including China.
Moreover, Respondent is not an authorized dealer of MOU branded products or services. Complainant has therefore established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifted the burden to Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, WIPO Case No. D2009-0610; 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).
Based on the following reasons the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name:
(a) There has been no evidence adduced to show that Respondent is using the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of the term “mou” in the disputed domain name and in its business operation. Rather, Respondent appears to attempt to take advantage of the goodwill associated with Complainant’s MOU marks to attract Internet users to a website selling purported Complainant’s products, presumably for commercial gain (see Annex 10 to the Complaint). The website at the disputed domain name does not accurately and prominently disclose Respondent’s relationship with Complainant. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the MOU marks or to apply for or use any domain name incorporating the MOU mark.
(b) There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that Respondent has any registered trademark rights with respect to the disputed domain name. Respondent registered the disputed domain name in 2019, after the MOU marks became internationally known. The disputed domain name is identical or confusingly similar to Complainant’s MOU marks.
(c) There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. By contrast, the Panel finds that the disputed domain name resolves to a website selling purported Complainant’s products.
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on the website or location.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that Respondent has registered and used the disputed domain name in bad faith.
The Panel finds that Complainant has a widespread reputation in the MOU marks with regard to its products or services. Complainant has registered its MOU marks since 2007, including Chinese trademark (since 2007) and international trademark registrations covering China (since 2009). Through its boutiques and department stores and websites, Complainant’s products are sold to customers across the world including China. It is not conceivable that Respondent would not have had actual notice of Complainant’s trademark right at the time of the registration of the disputed domain name (in 2019).
The Panel therefore finds that the MOU mark is not one that a trader could legitimately adopt other than for the purpose of creating an impression of an association with Complainant (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
Moreover, Respondent has chosen not to respond to Complainant’s allegations. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. See also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.
Thus, the Panel concludes that the disputed domain name was registered in bad faith.
Complainant also has adduced evidence to show that by using the confusingly similar disputed domain name, Respondent has “intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location”. To establish an “intention for commercial gain” for the purpose of this Policy, evidence is required to indicate that it is “more likely than not” that such intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra).
As noted above, the disputed domain name has been used to attract Internet users seeking Complainant’s websites to a website selling purported Complainant’s products, presumably for the commercial gain of Respondent. Such conduct falls squarely within the language of paragraph 4(b)(iv) of the Policy.
Further, given the lack of response, the Panel cannot envision any other plausible use of the disputed domain name that would not be in bad faith under the present circumstances. Taking into account all the circumstances of this case, the Panel concludes that current use of the disputed domain name by Respondent is in bad faith also.
In summary, Respondent, by choosing to register and use the disputed domain name, intended to ride on the goodwill of Complainant’s trademark in an attempt to exploit, for commercial gain, Internet users destined for Complainant. In the absence of evidence to the contrary and rebuttal from Respondent, the choice of the disputed domain name and the conduct of Respondent as far as the website to which the disputed domain name resolves is indicative of registration and use of the disputed domain name in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of paragraph 4(a) of the Policy.
For all 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 <mou-eur.com> be transferred to Complainant.
Yijun Tian
Sole Panelist
Dated: March 2, 2020