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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Europcar International S.A.S.U. v. lin yanxiao

Case No. D2016-0224

1. The Parties

The Complainant is Europcar International S.A.S.U. of Voisins-le-Bretonneux, France, represented by Taylor Wessing LLP, United Kingdom of Great Britain and Northern Ireland.

The Respondent is lin yanxiao of Guangzhou, Guangdong, China.

2. The Domain Name and Registrar

The disputed domain name <eurpcar.com> (the “Domain Name”) is registered with Hangzhou AiMing Network Co., LTD (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2016. On February 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 6, 2016, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on February 10, 2016.

On February 9, 2016, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On February 10, 2016, 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 together with the amended 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 both Chinese and English, and the proceeding commenced on February 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 7, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2016.

The Center appointed Karen Fong as the sole panelist in this matter on March 10, 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.

4. Factual Background

The Complainant was incorporated on October 30, 1995, but began operations under the EUROPCAR brand in France in 1949. The Complainant is part of the Europcar group of companies which specialises in car rental services (the “Europcar Group”). The Europcar Group operates and offers services in over 140 countries across the world. The Europcar Group has won numerous awards in recognition of its excellence in the car rental field. In 2013, the Europcar Group won Best Ground Transportation Companyat the Business Travel Awards, Best Short Term Car Rental Companyat the Fleet News Awards and Best van rental companyat the Fleet Van Awards. Furthermore, it was named the world’s leading car-hire company at the 2013 World Travel Awards and was awarded the Europe’s Responsible Tourism Awardat the World travel Awards 2013. It has also earned it the best travel website award at the Travel Mole Web Awards 2013.

The Complainant owns mark trade marks for EUROPCAR including the following:

- Chinese national trade mark number 4566884 for EUROPCAR & Device in class 39, registered in 2010;

- International registration number 708414 for EUROPCAR & Device in class 39, registered in 1999 covering a number of countries including China;

The Complainant also owns the domain names <europcar.com> and <europcar.cn> which are connected to its website which promote and sell its car rental services.

The Domain Name was created on January 1, 2014. The Domain Name was initially connected to a holding page. At the time of the filing of the Complaint, the Domain Name was directed to an error page. It is now connected to the same holding page again with links to different subjects – Cash Advance, Insurance, Cell Phone, Credit Card Application, Cheap Airfares, Debt Consolidation, Free Credit Report, Life Insurance, Real Estate and Finance. The links do not appear to be active.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical or confusingly similar to the EUROPCAR trade mark; the Respondent has no rights or legitimate interests with respect to the Domain Name; and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complainant to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:

(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name was registered and is being used in bad faith.

B. Language of the Proceeding

The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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. According to the information received from the Registrar, the language of the registration agreement for the Domain Name is Chinese.

The Complainant’s legal representatives confirmed via email to the Center on February 10, 2016 its arguments in the Complaint that the language of the proceeding should be English. The Complainant contends as follows:

- the holding page that used to be connected to the Domain Name was in English, indicating that the Respondent understands English.

- The Complainant and its representatives both work in English and so it would be unduly onerous for them to have to translate all correspondence into Chinese.

The Panel accepts the Complainant’s unrebutted submissions regarding the language of the proceeding. The Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese especially in circumstances where the Respondent has elected not to file a Response to the proceeding. The Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. The Respondent cannot avail himself of the excuse that he had no knowledge or did not understand that the proceeding has been filed against him. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding according to paragraph 11(a) of the Rules.

C. Identical or Confusingly Similar

The Complainant’s trade mark registrations which have been submitted in evidence are that of a stylized trade mark with EUROPCAR as the dominant element. EUROPECAR has also been extensively used and is a well-known mark. The Panel is satisfied that the Complainant has established that it has rights to the trade mark EUROPCAR.

The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. The Domain Name incorporates the Complainant’s mark in its entirety except for the lack of one letter “o” in the middle of the word. A misspelling of a trade mark does not necessarily eliminate confusion. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) suffix, in this case “.com”.

The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.

D. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers, or to tarnish the trademark or service mark at issue.

Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.

The Complainant has registered rights in the trade mark EUROPCAR & Device in China. The Respondent does not have any Internet presence known to the Complainant nor does it own any trade marks for EURPCAR. The name of the Respondent does not bear any resemblance to the Domain Name. The website that the Domain Name is connected to does not show there to be a bona fide offering of goods or services.

The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

E. Registered and Used in Bad Faith

To succeed under the Policy, a complainant must show that the domain name has been both registered and used in bad faith. It is a double requirement.

The Panel is satisfied that the Respondent was aware of the EUROPCAR trade mark when he registered the Domain Name. “Eurpcar” does not have any ordinary dictionary meaning. It is clearly a deliberate misspelling of EUROPCAR. The Respondent has failed to offer any explanation to the contrary.

The Panel concludes that the Respondent registered the Domain Name in bad faith.

The Domain Name was not connected to an active website at the time of filing. This does not prevent a finding of bad faith. The Consensus View in paragraph 3.2 of WIPO Overview 2.0 states that the apparent lack of active use of the domain name without any active attempt to sell or to contact the trade mark owner does not prevent a finding of bad faith. The Panel has to examine the circumstances of the case to determine whether the respondent is acting in bad faith. UDRP Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.

The EUROPCAR trade mark was registered in China and used before the Domain Name was registered. The Complainant has a presence on the Internet and is also well known globally. “Eurpcar” does not have any dictionary significance. It is striking that only the letter “O” is missing which is typical of typosquatting cases. It would be inconceivable that the Respondent had no knowledge of the trade mark when the Domain Name was registered. Further the Respondent’s contact details provided in the WhoIs are probably incorrect as there were delivery problems when the Center attempted to serve the Written Notice in the proceeding in accordance with paragraph 2 of the Rules.

In addition to the circumstances of registration referred to above, the following facts indicate that the Domain Name is being used in bad faith. The Complainant’s trade mark has achieved reputation and goodwill, the Domain Name has no other meaning other than being a misspelling of the Complainant’s trade mark and the content of the webpage connected to the Domain Name was changed after the filing of the Complaint.

Considering the circumstances, the Panel considers that the Domain Name was also used in bad faith.

The Panel finds that the Domain Name was registered and is being used in bad faith.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <eurpcar.com> be transferred to the Complainant.

Karen Fong
Sole Panelist
Date: March 24, 2016

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