Maruha Nichiro Corporation c/o Shigeru Ito v. Wang XiaoWen
Claim Number: FA1702001715376
Complainant is Maruha Nichiro Corporation c/o Shigeru Ito ("Complainant"), represented by James T. Burton of Kirton McConkie, Utah, USA. Respondent is Wang XiaoWen ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <maruha-nichiro.com>, registered with EJEE Group Holdings Limited.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 1, 2017; the Complaint was submitted in English only. The Forum received payment on February 1, 2017. Complainant submitted an Amended Complaint on February 6, 2017, adding a request that the proceeding be conducted in English.
On February 2, 2017, EJEE Group Holdings Limited confirmed by email to the Forum that the <maruha-nichiro.com> domain name is registered with EJEE Group Holdings Limited and that Respondent is the current registrant of the name. EJEE Group Holdings Limited has verified that Respondent is bound by the EJEE Group Holdings Limited registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 6, 2017, the Forum served the Amended Complaint and all Annexes, including a Written Notice of the Complaint in both English and Chinese, setting a deadline of February 27, 2017 by which Respondent could file a Response, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@maruha-nichiro.com. Also on February 6, 2017, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 13, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a Japanese company formed in 2007 by the merger of two companies, Maruha and Nichiro. Complainant is engaged in the marine product business, and has used the MARUHA NICHIRO mark in connection with this business since at least 2008. The mark is registered in Japan, China, Hong Kong, and many other jurisdictions.
The disputed domain name <maruha-nichiro.com> was registered by Respondent in 2009. Complainant states that it has not licensed or otherwise authorized Respondent to use its mark. The disputed domain name resolves to a website that describes the domain name as a "powerful Internet brand" and "premium domain name" and offers it for sale through a domain name auction agency.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The Panel notes that the Registration Agreement is written in Chinese. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise. Complainant requests that the proceeding be conducted in English, noting that both parties appear to be capable of communicating in English, and arguing that requiring the Complaint and other documents to be translated into Chinese would result in unnecessary delay and expense.
Complainant states that the page to which the disputed domain name resolves is in the English language. (The Panel has independently confirmed this, viewing the page via proxy from various locations including Japan, Hong Kong, Malaysia, and Singapore.) Complainant states that several other domain names owned by Respondent also resolve to English-language pages. Complainant also submitted an English-language email message that it received from Respondent subsequent to the filing of the Complainant as further evidence of Respondent's ability to communicate in English.
The Written Notice of the Complaint was transmitted to Respondent in both English and Chinese, and Respondent has not objected to Complainant's request that the proceeding be conducted in English. It appearing that both parties are capable of communicating in English, the Panel considers it appropriate under the present circumstances to conduct the proceeding in that language. See Tipo Oil Corp. v. Andrea Tosetti, FA 1620120 (Forum June 16, 2015); Fissler GmbH v. Chin Jang Ho, D2008-1002 (WIPO Sept. 9, 2008); SWX Swiss Exchange v. SWX Financial LTD, D2008-0400 (WIPO May 12, 2008); Deutsche Messe AG v. Kim Hyungho, D2003-0679 (WIPO Nov. 13, 2003).
The disputed domain name <maruha-nichiro.com> corresponds to Complainant's registered MARUHA NICHIRO mark, substituting a hyphen for the space and adding the ".com" top-level domain. It is thus identical to Complainant's mark for purposes of the Policy. See, e.g., PSC Management L.P. v. Pruthul S, FA 1065634 (Forum Oct. 15, 2007) (finding <perot-systems.com> identical to PEROT SYSTEMS); Montres Charmex S.A. v. Ammann & Co AG, FA 1036273 (Forum Sept. 27, 2007) (finding <swiss-military.com> identical to SWISS MILITARY). The Panel so finds.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name is effectively identical to Complainant's mark; it was registered without authorization from Complainant; and its only apparent use has been to solicit purchase offers for the domain name itself. See Cutex Brands, LLC v. Domain Names Administration, St Kitts Registry, FA 1557254 (Forum June 11, 2014) (finding a lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that the domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name."
Respondent registered a domain name corresponding to Complainant's distinctive mark, and the only apparent use of the domain name has been to solicit purchase offers by promoting it as a "powerful Internet brand" and "premium domain name." These actions clearly demonstrate bad faith under paragraph 4(b)(i).[1] The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <maruha-nichiro.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 14, 2017
[1] The Panel notes that other domain names registered by Respondent (and mentioned in Complainant's request that the proceedings be conducted in English) also correspond to distinctive trademarks, suggesting that Respondent may have engaged in a pattern of bad faith registrations under paragraph 4(b)(ii) of the Policy.
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