The Complainant is Volkswagen Financial Services AG of Braunschweig, Germany, represented by Lubberger Lehment, Germany.
The Respondent is tangzhou of Liuan, Anhui, China.
The disputed domain name <volkswagen-autoversicherung.com> (the “Disputed Domain Name”) is registered with Hangzhou AiMing Network Co., LTD (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2013. On March 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 29, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On April 3, 2013, the Center transmitted an email to the Parties in both Chinese and English language regarding the language of proceedings. On April 4, 2013, the Complainant requested that English be the language of proceeding. The Respondent did not comment on the language of proceedings 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 proceedings commenced on April 10, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 30, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2013.
The Center appointed Kar Liang Soh as the sole panelist in this matter on May 14, 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 part of the Volkswagen Group which was founded in 1937 and is a leading automobile manufacturer in the world. The Volkswagen Group is also in other businesses including manufacturing large-bore diesel engines, compressors, chemical reactors and vehicle parts, and financing, leasing, banking, insurance and fleet management services.
The Complainant owns many registrations comprising the word VOLKSWAGEN including the following:
Jurisdiction | Trademark No | Registration Date |
|
Germany |
1147779 |
Oct 12, 1989 |
|
Community Trademark |
000703702 |
May 10, 1999 |
|
WIPO |
554495 |
Nov 17, 1989 |
Prior UDRP panels have held that the trademark VOLKSWAGEN is a well-known mark (e.g., Volkswagen Aktiengesellschaft v. LaPorte Holdings, WIPO Case No. D2005-0780; Volkswagen AG v. David’s Volkswagen Page, WIPO Case No. D2004-0498).
The Complainant operates websites at “www.volkswagen.de” and “www.vfsag.de”.
The Disputed Domain Name was registered on October 8, 2012. The only information regarding the Respondent before the Panel is limited to the WhoIs information relating to the Disputed Domain Name. The addresses of the registrant, administrative contact, technical contact and billing contact in the WhoIs information are identical and merely identify what appears to be the name of a town and province in China without any street address.
The Complainant contends that:
1) The Disputed Domain Name is confusingly similar to the trademark VOLKSWAGEN. It consists of VOLKSWAGEN and the generic term “autoversicherung” which establishes a link to cars manufactured by the Volkswagen Group and insurance specifically focused on cars supplied by the Volkswagen Group. The term “autoversicherung” does not have a distinctive character and is not capable of precluding a likelihood of confusion.
2) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is not making legitimate noncommercial or fair use of the Disputed Domain Name as it is only registered for resale. The Respondent is not commonly known as VOLKSWAGEN. The Complainant and the Volkswagen Group have not authorized the Respondent to use the trademark VOLKSWAGEN.
3) The Disputed Domain Name was registered and is being used in bad faith. There is no reason for the Respondent to use the trademark VOLKSWAGEN other than to try to sell them and prevent the Complainant from registering a corresponding domain name. The use of the trademark VOLKSWAGEN by the Complainant and the Volkswagen Group predates the registration of the Disputed Domain Name. The trademark VOLKSWAGEN is well-known. The Respondent was aware of the trademark VOLKSWAGEN at the time of registering the Dispute Domain Name.
The Respondent did not reply to the Complainant’s contentions.
The registration agreement is in Chinese. The default language of the proceedings is therefore Chinese. The Complainant has requested that English be adopted instead as the language of the proceedings. The Panel is entitled to consider the request pursuant to paragraph 10 of the Rules. Having considered the circumstances, in particular the following, the Panel accedes to the Complainant’s request as such:
1) The Complainant does not understand Chinese but is an internationally operating company which uses English for business communication;
2) The website resolved from the Disputed Domain Name uses both English and Chinese, indicating that the Respondent is conversant in both;
3) The request for English is an accommodation to the Respondent. The Complainant is German and the Disputed Domain Name uses German words, but the Complainant did not press for German as the language of the proceeding;
4) The Respondent neither commented on the language request nor filed a Response; and
5) Requiring the Complainant to submit documents in Chinese would cause undue delay and substantial expenses.
To succeed in these proceedings, the Complainant must establish pursuant to paragraph 4a) of the Policy that:
1) The Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights;
2) The Respondent has no rights or legitimate interests in the Disputed Domain Name; and
3) The Disputed Domain Name was registered and is being used in bad faith.
The Complainant has shown that it has rights in the trademark VOLKSWAGEN by virtue of the trademark registrations. The Disputed Domain Name differs from the trademark VOLKSWAGEN in the suffix “autoversicherung” which means car insurance in German. The Panel accepts on the evidence that the Complainant is in the business of car insurance (among other businesses) under the trademark VOLKSWAGEN, and has no doubt that “autoversicherung” is descriptive of such services. The Panel is of the view that the descriptive word “autoversicherung” does not assist to distinguish the Disputed Domain Name from the trademark VOLKSWAGEN. Accordingly, the Complainant has established that the Disputed Domain Name is confusingly similar to the Complainant’s trademark VOLKSWAGEN.
The Complainant has confirmed that it and the Volkswagen Group have not authorized the Respondent to use the trademark VOLKSWAGEN. There is no evidence to suggest that the Respondent is known by the name VOLKSWAGEN. The only evidence of use of the Disputed Domain Name by the Respondent is the website resolved therefrom which offers to sell the Disputed Domain Name. There is no evidence before the Panel to show that the Respondent is making any legitimate noncommercial or fair use of the Disputed Domain Name. The Panel is satisfied that the Complainant has shown, prima facie, that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name. In view of the Respondent’s failure to file a Response or to offer any rebuttal, the prima facie finding stands. Accordingly, the Panel holds that the Respondent does not have rights or legitimate interests in the Disputed Domain Name.
Although the registration of the Disputed Domain Name by the Respondent prevented the Complainant from reflecting the same in a corresponding domain name, there is no evidence before the Panel indicating a pattern of such conduct in the manner provided in paragraph 4b)(ii) of the Policy.
The evidence suggests that the Disputed Domain Name was registered for resale. However, it does not appear from the evidence that the Respondent has demanded valuable consideration in excess of documented out of pocket expenses in the manner outlined in paragraph 4b)(i) of the Policy. Nevertheless, paragraph 4b) is not an exhaustive listing of all examples of bad faith. Prior UDRP panel decisions have affirmed that the trademark VOLKSWAGEN is well-known and there is nothing in the circumstances before the Panel which requires the Panel to disagree.
In particular, it is inconceivable why the Respondent would have selected the Disputed Domain Name other than for the evident intention to sell the same. There is no indication that the Respondent has used or is using the Disputed Domain Name for any other purpose. The Respondent must have in all likelihood been aware of the trademark VOLKSWAGEN at the time of registering the Disputed Domain Name. In the absence of any rights or legitimate interests in the Disputed Domain Name, the Panel can only conclude that the Disputed Domain Name was registered opportunistically. The Respondent failed to present any justification and the Panel concludes that the Disputed Domain Name was registered and is being used in bad faith.
The evidence also indicates that the Respondent has provided ineffective contact particulars in relation to the Disputed Domain Name. The addresses appearing on the WhoIs information is incomplete for purposes of corresponding with the Respondent. The 11 digit telephone and facsimile numbers provided by the Respondent do not incorporate the country dialing code for China, which is “852”. Paragraph 2 of the Policy imposes a warranty by the registrant that statements provided in the registration agreement are complete and accurate. The contact details of the registrant are clearly important parts of the same. By providing ineffective contact details, the Respondent has evidently failed to observe the warranty. In addition, previous UDRP panels have established that the deliberate failure to provide complete contact details is a failure to discharge the duty of a registrant to act honestly. Such failure is an additional basis for finding bad faith use and registration (see Immobiliére Dassault SA, Groupe Industriel Marcel Dassault v. DuanZuoChun, WIPO Case No. D2011-2106; ECCO Sko A/S v. Protected Domain Services – Customer ID: NCR-2448048/jizhiteam, WIPO Case No. D2010-1113; Farouk Systems Inc v. David, WIPO Case No. D2009-1245).
In view of the above, the Panel holds that the Respondent has registered and is using the Disputed Domain Name in bad faith.
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 <volkswagen-autoversicherung.com> be transferred to the Complainant.
Kar Liang Soh
Sole Panelist
Date: June 3, 2013