The Complainant is Amundi S.A. of Paris, France, represented by Nameshield, France.
The Respondent is Sun Qifeng / Sunqifeng of “Yang”, Jiangsu, China.
The disputed domain name <amundifunds.com> is registered with Hangzhou AiMing Network Co., LTD (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23 2015. On December 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 24, 2015, 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 December 28, 2015, the Center transmitted an email to the parties in English and Chinese regarding the language of the proceeding. On the same day, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not file any submissions regarding the language of the proceeding.
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 and 4, the Center formally notified the Respondent of the Complaint in Chinese and English, and the proceeding commenced on January 8, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 1, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on February 11, 2016. 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 France in 2010 and ranked in the top 10 asset management companies worldwide. The Complainant owns registrations in numerous jurisdictions worldwide for its trade mark AMUNDI (the “Trade Mark”), the earliest dating from September 2009. The Complainant is also the owner of the domain name <amundi-funds.com>, registered and used by the Complainant since September 16, 2009.
The Respondent is an individual apparently resident in China.
The disputed domain name was registered on June 29, 2010.
The disputed domain name has been resolved to an English language website which offers the disputed domain name for sale (the “Website”).
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
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.
Paragraph 11(a) of the Rules 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 order 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.
The Complainant has requested that English be the language of the proceeding for several reasons, including the fact the content of the Website is entirely in English.
The Respondent has not filed any response in this proceeding and has not filed any submissions regarding the language of the proceeding.
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.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. 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 prejudiced, should the language of the proceeding be English.
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 and registration.
The disputed domain name comprises the Trade Mark in its entirety, together with the word “funds”, which is directly descriptive of the services provided by the Complainant under the Trade Mark. The Panel finds the addition of “funds” to “amundi” does not serve to distinguish the disputed domain name from the Trade Mark in any significant way. Furthermore, disregarding the lack of hyphen, the disputed domain name is identical to the Complainant’s prior registered domain name <amundi-funds.com>.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. 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.
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 has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been offered for sale via the Website as a “premium domain name” the value of which “will gradually rise, the sooner purchasing the more wise”.
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 a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
In light of the offer for sale of the disputed domain name via the Website, the Panel finds the requisite element of bad faith has been satisfied under paragraph 4(b)(i) of the Policy.
For the foregoing reasons, the Panel has no hesitation in concluding that the disputed domain name has been registered and is being used 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 <amundifunds.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: February 25, 2016