The Complainant is Holding Le Duff “HLD” of Rennes, France, represented by SCAN Avocats, France.
The Respondent is Wang Lian Feng (王连凤) of Beijing, China.
The disputed domain names <briochedoree.info>, <leduff.公司>, <leduff.网络>, <leduff.biz>, <leduff.cc>, and <leduff.info> are registered with HiChina Zhicheng Technology Ltd.; the disputed domain names <briochedoree.online>, <briochedoree.shop>, <briochedoree.site>, <briochedoree.store>, <briochedoree.tech>, <briochedoree.top>, <briochedoree.xyz>, <leduff.club>, <leduff.shop>, <leduff.site>, <leduff.store>, <leduff.tech>, <leduff.top>, and<leduff.xyz> are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (collectively the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2018. On May 8, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 10, 2018, 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 May 16, 2018, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant submitted a request that English be the language of the proceeding on May 17, 2018. 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceeding commenced on May 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 20, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2018.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 27, 2018. 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 and the operator, since 1976, of restaurants and bakeries worldwide under the trade marks LE DUFF and BRIOCHE DOREE (the “Trade Marks”).
The Complainant is the owner of registrations for the Trade Marks in numerous jurisdictions worldwide, including European Union registration number 003637022 for the Trade Mark BRIOCHE DOREE, registered on April 26, 2005; Chinese registration number 9454852 for the Trade Mark BRIOCHE DOREE, registered on February 14, 2014; European Union registration number 010685816 for the Trade Mark LE DUFF, registered on July 31, 2012; and Chinese registration number 17667116 for the Trade Mark LE DUFF, registered on October 7, 2016.
The Respondent is apparently an individual resident in China.
The disputed domain names <leduff.info> and <leduff.biz> were both registered on December 26, 2017. All of the other disputed domain names were registered on the same date, February 6, 2018.
The disputed domain names have not been used.
All of the disputed domain names, with the exception of the disputed domain name <leduff.公司>, have been offered for sale on the Sedo or Unregistry domain brokerage websites.
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain names and the disputed domain names have been registered and are being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
The language of the Registration Agreements for the disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the Registration Agreements, the language of the administrative proceeding shall be the language of the Registration Agreements.
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 the language of the proceeding be English, for several reasons, including in particular the fact that the disputed domain names are offered for sale on the Sedo and Unregistry platforms for amounts announced in US dollars.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding 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.
The Panel is mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, including the fact that all of the Center’s communications to the Parties have been transmitted in both English and Chinses, the Respondent’s failure to submit any response, and the Respondent’s failure to make any submissions on the language of the proceeding, the Panel therefore finds it is not foreseeable that the Respondent would be 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 Marks acquired through use and registration.
The disputed domain names incorporate the entirety of either the Trade Mark BRIOCHE DOREE or the Trade Mark LE DUFF (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7).
Excluding the generic Top-Level Domains (and, in the case of the disputed domain name <leduff.cc>, the country code Top-Level Domain “.cc”), the disputed domains are identical to the relevant Trade Marks.
The Panel therefore finds that the disputed domain names are identical to the Trade Marks.
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 non-commercial 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 names or to use the Trade Marks. 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 names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, none of the disputed domain names has been used; and each of the disputed domain names, with the exception of the disputed domain name <leduff.公司>, has been offered for sale on the Sedo or Unregistry domain brokerage websites at the price of USD 5,999 per disputed domain name, and at USD 1,000 in the case of the disputed domain name <leduff.xyz>.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names.
The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
Given the notoriety of the Complainant and of its Trade Marks; the fact the disputed domain names are identical to the Trade Marks; that all but two of the disputed domain names were registered on the same day (and the remaining two were registered on the same day); the passive use of the disputed domain names; and the Respondent’s offer to sell all but one of the disputed domain names for prices far in excess of the Respondent’s likely out-of-pocket expenses incurred in registering the disputed domain names, the Panel has no hesitation in concluding the requisite element of bad faith registration and use has been made out, both under the Panel’s general discretion, and under paragraph 4(b)(i) of the Policy.
The Panel considers it is inconceivable the Respondent was not aware of the Trade Marks at the time the Respondent registered the disputed domain names.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are 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 names, <briochedoree.info>, <briochedoree.online>, <briochedoree.shop>, <briochedoree.site>,<briochedoree.store>, <briochedoree.tech>, <briochedoree.top>, <briochedoree.xyz>, <leduff.公司>, <leduff.网络>, <leduff.biz>, <leduff.cc>, <leduff.club>, <leduff.info>, <leduff.shop>, <leduff.site>, <leduff.store>, <leduff.tech>, <leduff.top>, and <leduff.xyz> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: July 16, 2018