WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Molnlycke Health Care AB v. Zhaoxingming

Case No. D2019-2097

1. The Parties

Complainant is Molnlycke Health Care AB, Sweden, represented by CSC Digital Brand Services AB, Sweden.

Respondent is Zhaoxingming, China.

2. The Domain Name and Registrar

The disputed domain name <molnlycke.biz> is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).

3. Procedural History

The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2019. On August 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 30, 2019, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center sent an email communication to Complainant on August 30, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint in English on September 11, 2019.

On August 30, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. Complainant requested that English be the language of the proceeding on September 11, 2019. Respondent did not comment on the language of the proceeding.

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 Respondent of the Complaint in English and Chinese, and the proceedings commenced on September 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 3, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 4, 2019.

The Center appointed Yijun Tian as the sole panelist in this matter on October 10, 2019. 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

A. Complainant

Complainant, Molnlycke Health Care AB, is a company incorporated in Sweden. Founded in 1849, Complainant has been a pioneer in the healthcare industry. Originally founded as a textile business, Complainant rapidly established itself as one of the leading gauze suppliers for Swedish hospitals. Complainant now has over 7,700 employees across five continents, through its 38 sales offices and 16 manufacturing sites. A privately-owned company, 99 percent owned by Investor AB, Molnlycke Health Care AB’s net sales in 2017 were of EUR 1,445 million (See Annex 6.1 to the Compliant).

Complainant has registered a number of trademarks for MÖLNLYCKE in various jurisdictions, including trademark registration in Sweden (registered on April 19, 1963, the trademark registration number 105870), trademark registration in China (registered on June 18, 2014, the trademark registration number G1230528) and international trademark registration covering China (registered on June 18, 2014, the trademark registration number 1230528) (Annex 1 to the Complaint). Complainant’s registered the domain name <molnlycke.com> of its official website on September 22, 1996, and has had a strong web presence since that date. (Annexes 4-5 to the Complaint).

B. Respondent

Respondent is Zhaoxingming, China. Respondent registered the disputed domain name <molnlycke.biz> on September 10, 2018, which is long after Complainant’s registration of the MÖLNLYCKE trademarks in Sweden (since 1963) and China (since 2014). At the time of this decision, the disputed domain name directed to a website which contains links to third-party websites, including some directly compete with Complainant's business (Annex 3 to the Complaint).

5. Parties’ Contentions

A. Complainant

Complainant contends that the disputed domain name is confusingly similar to the MÖLNLYCKE mark in that it is similar to such mark in both sight and sound, only lacking an accent (umlaut) on the “o”, which does not eliminate confusing similarity.

Complainant contends that Respondent has no rights or legitimate interests in 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 <molnlycke.biz> be transferred to Complainant.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

6.1. Language of the Proceeding

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 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) Complainant is unable to communicate in Chinese and translation of the Complaint would unfairly disadvantage and burden Complainant and delay the proceedings and adjudication of this matter; Such additional delay poses continuing risk to Complainant and unsuspecting consumers seeking Complainant or its products;

(b) The disputed domain name is comprised of Latin characters;

(c) The pay-per-click links on the website accessed through the disputed domain name all feature phrases or words in English, including “Tena Products” and “Dental Tape” (see Annex 3 to the Complaint);

(d) Complainant previously sent a cease-and-desist letter to Respondent, as provided in the Complaint (see Annex 10 to the Complaint), and Respondent had ample time and opportunity to respond to such letter and request that communications continue in Chinese. Respondent neither issued such a request nor responded to Complainant in any matter whatsoever. To allow Respondent to dictate the course of this matter and further burden Complainant at this juncture would contravene the spirit of the UDRP and disadvantage Complainant; and

(e) In light of Respondent’s use of the disputed domain name and Respondent’s decision to register a domain name that misappropriates the famous MÖLNLYCKE mark and brand, it would unduly burden Complainant to have to arrange and pay for translation where Respondent has demonstrated behavior that disrupts Complainant’s business and has already required Complainant to devote significant time and resources to addressing this instance of abuse.

Furthermore, 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) 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 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 UDRP panel for the proceeding should not be prejudicial to either one of the parties in his or her 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, UDRP 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).

The Panel has taken into consideration the facts that Complainant is a company from Sweden, and Complainant will be spared the burden of working in Chinese as the language of the proceeding. The Panel has also taken into consideration the fact that the disputed domain name includes Latin characters “MÖLNLYCKE” and is registered in the generic Top-Level Domain (“gTLD”) space comprising of the Latin characters and English word “biz” (Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).

On the record, Respondent appears to be a Chinese individual 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 <molnlycke.biz> includes Latin characters “MÖLNLYCKE” rather than Chinese script; (b) the gTLD of the disputed domain name is “.biz” is in Latin characters; (c) the disputed domain name currently resolves to a website which is the site in English-language;¹ (d) the Center has notified Respondent of the proceeding in both Chinese and English; (e) the Center informed Respondent that it would accept a Response in either English or Chinese; and finally Respondent did not reject for English to be the language of 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 his or her 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.

6.2. Substantial Issues

Paragraph 4(a) of the Policy requires that Complainant prove each of the following three elements to obtain an order that the disputed domain name should be 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;

(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 regards to the content of the relevant provisions of the Policy (paragraphs 4(a) - (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the MÖLNLYCKE marks acquired through registration. The MÖLNLYCKE marks have been registered worldwide including registrations in Sweden and China.

The disputed domain name <molnlycke.biz> comprises the MÖLNLYCKE mark in its entirety. The absence of the circumflex accent (using “o” rather than “Ö”) in the disputed domain name may be disregarded as technical requirements that do not affect the determination of confusing similarity here (see Lancôme Parfums Et Beauté Et Compagnie v. Kimbeomsung, WIPO Case No. DRO2015-0002).

In addition to the circumflex accent, the disputed domain name only differs from Complainant’s trademarks by the addition of the gTLD suffix “.biz”. This does not eliminate the confusing similarity between Complainant’s registered trademarks and the disputed domain name either. 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)

Thus, the Panel finds that disregarding the circumflex accent and the gTLD suffix “.biz”, the disputed domain name is identical to the MÖLNLYCKE marks.

The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

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 names, 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 decisions 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).

According to the Complaint, Complainant has been a pioneer in the healthcare industry. It currently has over 7,700 employees across five continents, through its 38 sales offices and 16 manufacturing sites. Complainant has rights in the MÖLNLYCKE marks internationally, including the Swedish trademark registration since 1963, and the Chinese trademark registration since 2014, which long precede Respondent’s registration of the disputed domain name (in 2018).

Moreover, Respondent is not an authorized dealer of MÖLNLYCKE-branded products or services. The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name and thereby shifts 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 word “molnlycke” in the disputed domain name and in its business operation. There has been no evidence to show that Complainant has licensed or otherwise permitted Respondent to use the MÖLNLYCKE marks or to apply for or use any domain name incorporating the MÖLNLYCKE mark, and Respondent has, through the use of an identical domain name created a likelihood of confusion with the MÖLNLYCKE marks.

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 2018, long after the MÖLNLYCKE marks became internationally known. The disputed domain name is identical or confusingly similar to Complainant’s MÖLNLYCKE 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. The website resolved by the disputed domain name currently contains links to third-party websites, including some directly compete with Complainant's business (Annex 3 to the Complaint).

The Panel finds that Respondent has failed to produce any evidence to rebut Complainant’s prima facie showing on Respondent lack of 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.

C. Registered and Used in Bad Faith

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 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.

a) Registered in Bad Faith

The Panel finds that Complainant has a widespread reputation in the MÖLNLYCKE mark with regard to its products. Complainant has registered its MÖLNLYCKE mark internationally, including registration in Sweden (since 1963) and in China (since 2014). In addition, based on the information provided in the Complaint, Complainant has a global presence. It now has over 7,700 employees across five continents, through its 38 sales offices and 16 manufacturing sites. A privately-owned company, 99 percent owned by Investor AB, Molnlycke Health Care AB’s net sales in 2017 were of EUR 1,445 million (See Annex 6.1 to the Compliant). Therefore, it is not conceivable that Respondent would not have had actual notice of Complainant’s trademark rights at the time of the registration of the disputed domain name (in 2018). The Panel therefore finds that the MÖLNLYCKE mark is not one that traders 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 UDRP 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.

b) Used 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 websites 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).

Given the widespread reputation of the MÖLNLYCKE marks, and the confusingly similar disputed domain name <molnlycke.biz>, the Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with Complainant, contrary to fact. There is a strong likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website. In the other words, Respondent has, through the use of a confusingly similar domain name, created a likelihood of confusion with the MÖLNLYCKE marks.

Further, the website resolved by the disputed domain name explicitly states: “The domain molnlycke.biz may be for sale. Click here to inquire about this domain.” The website also contains links to third-party websites, including some directly compete with Complainant's business (Annex 3 to the Complaint). Such conducts fall squarely within the language of paragraph 4(b)(iv) of the Policy.

The Panel therefore concludes that the disputed domain name is being used by Respondent in bad faith.

In summary, Respondent, by choosing to register and use domain name which is confusingly similar to Complainant’s trademark, 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.

7. Decision

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 <molnlycke.biz> be transferred to Complainant.

Yijun Tian
Sole Panelist
Dated: October 29, 2019

¹ “www.molnlycke.biz”