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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Argento Wine Company Limited v. Argento Beijing Trading Company

Case No. D2009-0610

1. The Parties

The Complainant is The Argento Wine Company Limited of London, the United Kingdom of Great Britain and Northern Ireland.

The Respondent is Argento Beijing Trading Company of Beijing, People`s Republic of China.

2. The Domain Name and Registrar

The disputed domain name <argentobj.com> is registered with HiChina Zhicheng Technology Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 7, 2009. On May 8, 2009, the Center transmitted by email to HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the disputed domain name. On May 8, 2009, HiChina Zhicheng Technology Ltd. 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 12, 2009, the Center transmitted an email to the Parties in Chinese and English concerning the language of the proceeding. On May 14, 2009, the Complainant submitted a request that English be the language of proceeding. The Respondent did not submit any comments with respect to the language of the proceeding by the due date. The Center has verified that the Complaint satisfies 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 May 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for the Response was June 9, 2009. The Respondent did not submit any Response. Accordingly, the Center notified the parties of the Respondent`s default on June 12, 2009.

The Center appointed Sebastian Hughes as the sole panelist in this matter on June 17, 2009. 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. The Complainant

The Complainant is a private limited company incorporated in the United Kingdom in 2004. The Complainant is the proprietor of the following trade mark applications and registrations in respect of its ARGENTO brand:

(1) United Kingdom Registration No. 2115710 for the trade mark ARGENTO, filed on 14 November 1996 and registered on July 4, 1997 in respect of "Alcoholic beverages (except beers)" in Class 33. This mark was registered in the name of La Rural Vinedos Y Bodegas S.A. Ltda and subsequently assigned to Limatone Limited, which then changed its name to The Argento Wine Company Limited;

(2) United Kingdom Registration No. 2482670 for the trade mark ARGENTO ALTALUZ, filed on March 17, 2008 and registered on September 12, 2008 in respect of "Alcoholic beverages (except beers); wines" in Class 33;

(3) United Kingdom Registration No. 2484165 for the trade mark ARTESANO DE ARGENTO, filed on April 7, 2008 and registered on September 5, 2008 in respect of "Alcoholic beverages (except beers); wines" in Class 33;

(4) European Community Trade Mark Registration No. 001093434 for the trade mark ARGENTO, filed on March 3,1999 and registered on November 21, 2001 in respect of "Alcoholic beverages (except beers), in particular sparkling wine, fortified wine" in Class 33. This mark is registered in the name of Bodegas Esmeralda S.A. which owns 50% of the shares in the Complainant;

(5) European Community Trade Mark Registration No. 006015648 for the trade mark ARGENTO THE REAL ARGENTINA, filed on June 19, 2007 and registered on April 1, 2008 in respect of "Alcoholic beverages; wine" in Class 33;

(6) European Community Registration No. 006197438 for the trade mark ARGENTO ARTESANO, filed on August 14, 2007 and registered on 16 June 2008 in respect of "Alcoholic beverages; wine" in Class 33;

(7) European Community Registration No. 006890991 for the trade mark ARTESANO DE ARGENTO, filed on May 6, 2008 and registered on November 12, 2008 in respect of "Alcoholic beverages; (except beers); wines" in Class 33;

(8) United States Application No. 78947521 for the trade mark ARGENTO, filed on August 11, 2006 in respect of "Wines" in Class 33. This mark was filed in the name of Finca Flinchman S. A., but was subsequently assigned to the Complainant on 16 March 2007;

(9) United States Application No. 77662284 for the trade mark ARTESANO DE ARGENTO, filed on February 6, 2009 in respect of "Wines" in Class 33;

(10) Canadian Registration No. TMA727180 for the trade mark ARGENTO, filed on May 19, 2000 and registered on October 28, 2008 in respect of "Alcoholic beverages namely wines";

(11) Canadian Application No. 1403179 for the trade mark ARTESANO DE ARGENTO, filed on July 14, 2008 in respect of "Alcoholic beverages; wines";

(12) Argentinean Application No. 2.866.033 for the trade mark ARTESANO DE ARGENTO, filed on October 14, 2008 in respect of "Alcoholic beverages; wines" in Class 33;

(13) European Community Registration No. 005295365 for the trade mark "A" Device, filed on September 6, 2006 and registered on August 6, 2007 in respect of "Alcoholic beverages; wine" in Class 33; and

(14) United States Registration No. 3411775 for the trade mark "A" Device, filed on September 7, 2006 and registered on 15 April 2008 in respect of "Wines" in Class 33.

In addition to the trade mark applications and registrations relating to the ARGENTO brand which the Complainant owns, the Complainant operates the website "www.argentowine.com" (the "Complainant`s Website") which is concerned solely with the promotion of wines from Argentina under the ARGENTO brand.

B. The Respondent

The Respondent is a limited corporation established in China. The Respondent has filed Chinese Trade Mark Application No. 6566778 A ARGENTO & Device on February 27, 2008 in Class 33 covering "Fruit extracts [alcoholic]; beverages containing fruit (Alcoholic-); fruit (alcoholic beverages containing-); liqueurs; spirits [beverages]; alcoholic beverages [except beer]; wine; vapor wine; clear wine; beverages (Distilled)."

The disputed domain name was registered on July 31, 2007.

5. Parties` Contentions

The following facts are alleged by the Complainant in the Complaint and have not been disputed by the Respondent.

A. Complainant

1) The domain name is confusingly similar to a trade mark in which the Complainant has rights

The disputed domain name <argentobj.com> differs from the Complainant`s ARGENTO brand by its addition of the two letters "bj", which the Complainant submits are intended to indicate the city of Beijing, which is the city in which the Respondent is resident and from or in which it is submitted the Respondent conducts its business. "Bj" is a commonly used acronym for Beijing and is likely to be understood as such by the average consumer. The domain name <argentobj.com> would ordinarily be pronounced <argento-bee-jay.com>, which would retain the visual, aural and conceptual identity of ARGENTO alone, while indicating to the consumer that the geographical source of any product or service offered by an on-line business operating under this domain would be Beijing. On this basis, the Complainant submits that the disputed domain name is confusingly similar to the Complainant`s ARGENTO brand.

2) The Respondent has no rights or legitimate interests in respect of the domain name

The Respondent should not be considered as having any rights or legitimate interests in respect of the domain name which is the subject of the Complaint. Although the Respondent has filed Chinese Trade Mark Application No. 6566778 A ARGENTO & Device on February 27, 2008 in Class 33 covering "Fruit extracts [alcoholic]; beverages containing fruit (Alcoholic-); fruit (alcoholic beverages containing-); liqueurs; spirits [beverages]; alcoholic beverages [except beer]; wine; vapour wine; clear wine; beverages (Distilled)", the Complainant intends to oppose this application on its publication, which is expected to take place in 2010, on the basis of its prior use of the ARGENTO mark in China as well as its foreign trade mark applications and registrations, use of and reputation in the ARGENTO brand.

3) The domain name was registered and is being used in bad faith

The domain name should be considered as having been registered and used in bad faith by the Respondent. The Respondent is in the course of constructing a website under the domain name and which bears the ARGENTO brand. It is clear from the website and, in particular, the tag line "All About Wine" that the Respondent intends to use the website to promote wine under the ARGENTO brand. The title for this domain name as listed on Google`s search engine is "Argento Wine Club". In addition to the trade mark applications and registrations relating to the ARGENTO brand which the Complainant owns, the Complainant operates the website"www.argentowine.com". It is clear to see that the website "www.argentowine.com" is concerned solely with the promotion of wines from Argentina under the ARGENTO brand. The Complainant submits that by using the domain name <argentobj.com> in respect of wine, the Respondent is intentionally attempting to attract Internet users to the Respondent`s website for commercial gain, by creating a likelihood of confusion with the Complainant`s ARGENTO mark as to the commercial origin or endorsement of the Respondent`s website. The Complainant asserts that the Respondent seeks to take unfair advantage of the reputation and goodwill which the Complainant has generated as a result of its use of its ARGENTO brand on its website "www.argentowine.com" and elsewhere in order to attract Internet users to the website which the Respondent is in the course of constructing and which also describes itself as relating to wine. The Complainant further asserts that the Respondent`s adoption of a stylised "A" in the home page of its website is also for the purpose of intentionally attempting to attract Internet users to the Respondent`s website for commercial gain, by creating a likelihood of confusion with the Complainant`s ARGENTO brand as to the commercial origin or endorsement of the Respondent`s website. The Complainant displays a stylised "A" on its ARGENTO branded wine. The Complainant has obtained European Community Trade Mark Registration No. 005295365 covering "Alcoholic beverages; wine" in Class 33 and United States Trade Mark Registration No. 3411775 covering "Wines" in Class 33 in respect of its stylised "A" mark. The Respondent`s use of a styled "A" on the homepage of its website constitutes further evidence that it has adopted the ARGENTO brand in bad faith in an attempt to take unfair advantage of the reputation and goodwill which the Complainant has generated as a result of its use of its ARGENTO brand.

B. Respondent

The Respondent did not reply to the 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 unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. From the evidence presented in the record, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English.

Paragraph 11(a) 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. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (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 Complainant has requested that English be the language of the proceeding for the following reasons:

(1) The domain name <argentobj.com> has been registered in Latin, rather than Chinese script, which indicates a familiarity on the part of the Respondent with European languages. Furthermore, the home page of the website includes the English phrase "All about wine", which indicates that the content of the website is intended to be presented in English;

(2) The Registrant/Administrative Organization listed in the WhoIs record for <argentobj.com> is an Argentinean individual, Santiago Vota who is the legal representative of the Respondent in China and who will easily be able to understand English;

(3) The Respondent has filed the Chinese trade mark application which covers the Latin letter "a", together with the Latin word "argento", which again indicates an understanding of European languages;

(4) The Complainant is an English private limited company, incorporated in the United Kingdom. The Respondent operates its business in the English language and has no apparent knowledge of Chinese language.

The 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.

On May 8, 2009, HiChina Zhicheng Technology Ltd. transmitted by email to the Center its verification response confirming that the language of the registration agreement is Chinese.

The Panel has taken into consideration the facts that the website of the disputed domain name includes English phrases (Expoconsult B.V. trading as CMP Information v. Roc Guan, WIPO Case No. D2008-1600; Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).

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 (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng, WIPO Case No. D2006-0432).

In view of the above, it is not foreseeable that the Respondent will be prejudiced, should English be adopted as the language of the proceeding. Further, the Complainant will be spared the burden of dealing with Chinese as the language of the proceeding.

Having considered all the matters above, this Panel determines under paragraph 11(a) that English shall be the language of the proceeding.

6.2 Decision

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:

(1) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;

(2) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(3) The disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the trade mark ARGENTO ("the Trade Mark") acquired through use and registration.

The Trade Mark has not been registered or applied for in China (or indeed elsewhere in Asia).

According to the Complainant`s Website, the Complainant sells its goods under the Trade Mark in Hong Kong, SAR of China, Taiwan, Province of China, Singapore, Malaysia, Thailand and the Philippines. There is however no evidence of sales in Mainland China on the Complainant`s Website. The Complainant has however asserted that it intends to oppose the Respondent`s Chinese trade mark application on grounds of, inter alia, prior use of the Trade Mark in China. The Respondent has not disputed this assertion of prior use in China.

The disputed domain name comprises the Trade Mark in its entirety. UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy "when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name" (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).

Generally a user of a mark "may not avoid likely confusion by appropriating another`s entire mark and adding descriptive or non-distinctive matter to it". (J. Thomas McCarthy, McCarthy on Trade marks and Unfair Competition (4th ed. 1998); General Electric Company v. CPIC NET and Hussain Syed, WIPO Case No. D2001-0087; PCCW-HKT DataCom Services Limited v. Yingke, HKIAC Case No. 0500065).

The Panel finds that the use of the suffix "bj" is not sufficient to negate the confusing similarity between the disputed domain name and the Trade Mark.

The Panel therefore holds that the Complaint fulfills 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 the Respondent has rights or legitimate interests in the disputed domain name:

(i) use of, or preparations to use, the domain name in connection with a bona fide offering of goods or services;

(ii) the fact that the Respondent has commonly been known by the domain name; and

(iii) legitimate non-commercial or fair use of the domain name.

The Complainant has prior rights in the Trade Mark which precede the Respondent`s registration of the disputed domain name by over 10 years. The Complainant has established a prima facie case that the Respondent has no rights and legitimate interests in the disputed domain name and thereby shifted the burden to the Respondent to produce evidence to rebut this presumption (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).

The Complainant has brought to the attention of the Panel the Respondent`s trade mark application in China. Without more, a trade mark application is insufficient to establish rights or legitimate interests in a domain name. Notwithstanding the Respondent`s trade mark application, on the evidence filed, the Respondent does not have any registered trade mark rights in respect of ARGENTOBJ or ARGENTO. Further, the Complainant has indicated it intends opposing the Respondent`s trade mark application on its publication.

The Respondent has failed to show that it has acquired any trade mark rights or that the disputed domain name is used in connection with a bona fide offering of goods or services.

The Respondent has not commenced active use of the disputed domain name. The Respondent has merely resolved the disputed domain name to a "this site is under construction" webpage. This does not amount to demonstrable preparations for use of the disputed domain name in connection with a bona fide offering of goods or services (Pepperdine University v. BDC Partners, Inc., WIPO Case No. D2006-1003).

There has been no evidence adduced to show that the Respondent has any registered trade mark rights with respect to the disputed domain name. 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 non-commercial or fair use of the disputed domain name.

The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfills the second condition of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of the Respondent:

"By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant`s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."

The Complainant`s Website is concerned solely with the promotion of wines from Argentina under the Trade Mark. The "this site under construction" page to which the disputed domain is resolved contains a tag line "All about Wine" under the word "argento" which indicates that the Respondent intends to use the website to promote wine under the ARGENTO trade mark. The site also features a stylised "A" device which is similar to the stylised "A" device mark registered and used by the Complainant in respect of the promotion and sale of wine.

The Panel finds that the public is likely to be confused into thinking that the disputed domain name has a connection with the Complainant, contrary to the fact. There is a strong likelihood of confusion as to source, sponsorship, affiliation or endorsement of the website to which the disputed domain name is resolved.

To establish an intention for commercial gain, evidence is required to indicate that it is "more likely than not" that intention existed (Wal-Mart Stores, Inc. and Wal-Mart China Co. Ltd v. Liangchenyong, ADNDRC Case No. HKcc-0800008).

The failure of the Respondent to respond to the Complaint further supports an inference of bad faith (Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787).

For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.

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 domain name, <argentobj.com> be transferred to the Complainant.


Sebastian Hughes
Sole Panelist

Dated: July 1, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0610.html

 

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