News from WIPO (here) of the decision to order the transfer of the huawei.ae domain from a local registrant to Huawei.
The full wording of the decision is:
WIPO Arbitration and Mediation
Center
ADMINISTRATIVE PANEL DECISION
Huawei Technologies Co. Ltd. v.
Jingeng Hong
Case No. DAE2014-0004
1. The Parties
The Complainant is Huawei
Technologies Co. Ltd. of China, represented by Muscovitch & Associates,
Canada.
The Respondent is Jingeng Hong of
the United Arab Emirates (“UAE”).
2. The Domain Name and Registrar
The disputed domain name
is registered with AE Domain Administration (.aeDA).
3. Procedural History
The Complaint was filed with the WIPO
Arbitration and Mediation Center (the “Center”) on July 27, 2014. On July 28,
2014, the Center transmitted by email to AE Domain Administration (.aeDA) a
request for registrar verification in connection with the disputed domain name.
On July 31, 2014, AE Domain Administration (.aeDA) transmitted by email to the
Center its verification response confirming that the Respondent is listed as
the registrant and providing the contact details.
The Center verified that the
Complaint satisfied the formal requirements of the UAE Domain Name Dispute
Resolution Policy for – UAE DRP approved by .aeDA (the “Policy”), the Rules for
UAE Domain Name Dispute Resolution Policy - UAE DRP (the “Rules”), and the
Supplemental Rules for UAE Domain Name Dispute Resolution Policy - UAE DRP (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 proceeding commenced on August 6, 2014. In accordance with
the Rules, paragraph 5(a), the due date for Response was August 26, 2014. The
Center received several informal email communications from the Respondent on
August 6 and 7, 2014. The Respondent did not file a formal Response.
The Center informed the parties on
August 27, 2014, about the Commencement of the Panel appointment process. On
August 27, 2014, the Complainant submitted unsolicited supplemental filings to
the Center, and on August 28, 2014, the Respondent sent further unsolicited
email communications to the Center.
The Center appointed Sebastian M.W.
Hughes as panelist in this matter on September 2, 2014. 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.
On September 2, 2014, the Respondent
sent a further unsolicited email communication to the Center.
4. Factual Background
A. Complainant
The Complainant is a company
incorporated in China and the owner of numerous registrations worldwide for the
word and device trade mark HUAWEI (the “Trade Mark”), the earliest dating from
1997, including registrations in the UAE.
B. Respondent
The Respondent is an individual
located in the UAE.
C. The Disputed Domain Name
The disputed domain name was
registered on November 13, 2013. It has not been used in connection with an
active website.
5. Parties’ Contentions
A. Complainant
The Complainant made the following
submissions in the Complaint.
The Complainant is a global provider
of information and communications technology under the Trade Mark.
The Complainant employs over 150,000
people worldwide and its products are sold in 170 countries worldwide.
The disputed domain name was
previously registered by one of the Complainant’s subsidiaries, before its
registration was inadvertently allowed to lapse in 2012.
The disputed domain name is
confusingly similar to the Trade Mark.
The Respondent has no rights or legitimate
interests in respect of the disputed domain name. The Respondent is not
affiliated with or authorised by the Complainant. The Respondent is not using
the disputed domain name in respect of a bona fide offering of goods or services. The Respondent is
not commonly known by the disputed domain name.
The Respondent is a cybersquatter
who has demonstrated a pattern of registering “.ae” domain names which
correspond with the brand names of well-known Chinese companies, including
, , , and
.
The disputed domain name has been
registered and used in bad faith. The Trade Mark is a well-known mark and,
given the notoriety of the Trade Mark, the Respondent must have known of the
Complainant and of the Trade Mark when it registered the disputed domain name.
In response to a letter of demand
from the Complainant’s representatives requesting transfer of the disputed
domain name, the Respondent claimed to be in the business of “buying and
selling domain names and network space, domain name investment, and creating
websites”, and refused to transfer the disputed domain name to the Complainant
on the basis of “first come, first served”. The Respondent also claimed “And we
registered more domain names including but not limited to huawei.ae”.
B. Respondent
The Respondent did not file a formal
Response, but asserted in its informal email communications that the disputed
domain name had been legally registered, and that the Respondent had legitimate
rights in the disputed domain name.
6. Discussion and Findings
6.1 Supplemental Filings
Panels have sole discretion, under
paragraphs 10 and 12 of the Rules, whether to accept an unsolicited
supplemental filing from either party, bearing in mind the need for procedural
efficiency, and the obligation to treat each party with equality and ensure
that each party has a fair opportunity to present its case. The party
submitting its filing would normally need to show its relevance to the case and
why it was unable to provide that information in the complaint or response.
As neither party has provided
sufficient reasons to satisfy the above criteria, the Panel determines that it
will not admit the supplemental filings in this proceeding.
6.2 Substantive Elements of the
Policy
The Complainant must prove each of
the three elements in paragraph 6(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant
has rights in the Trade Mark acquired through use and registration which
predate the date of registration of the disputed domain name by many years.
Apart from the country-code Top
Level Domain “.ae”, the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the
disputed domain name is identical to the Trade Mark and holds that the
Complaint fulfils the first condition of paragraph 6(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 6(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 domain
name:
(i) before any notice to the
respondent 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 (as an
individual, business, or other organisation) has been commonly known by the
domain name even if the respondent has acquired no trade mark 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 trade mark
or service mark at issue.
There is no evidence that the
Complainant has authorised, licensed, or permitted the Respondent to register
or use the disputed domain name or to use the Trade Mark. The Complainant has
prior rights in the Trade Mark which precede the Respondent’s registration of
the disputed domain name by many years. 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 name and the burden is thus on the Respondent to produce evidence to
rebut this presumption.
The Respondent has failed to show
that it has acquired any trade mark rights in respect of the disputed domain
name or that the disputed domain name is used in connection with abona fide offering of goods or
services. The Respondent has adduced no evidence to show that the disputed
domain name has been actively used.
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 any legitimate noncommercial or fair use
of the disputed domain name.
The Panel finds that the Respondent
has failed to produce any evidence to establish rights or legitimate interests
in the disputed domain name. The Panel therefore finds that the Complaint
fulfils the second condition of paragraph 6(a) of the Policy.
C. Registered or Used in Bad Faith
Pursuant to paragraph 6(b)(ii) of
the Policy, the following conduct amounts to registration or use of a domain
name in bad faith on the part of a respondent:
ii) You have registered the domain
name in order to prevent the owner of the trade mark or service mark from
reflecting the mark in a corresponding domain name, provided that you have
engaged in a pattern of such conduct.
The evidence clearly shows that the
Respondent has engaged in a pattern of registering “.ae” domain names which are
identical to the trade marks of several well-known Chinese companies. The
Respondent has tacitly admitted this fact in its response to the Complainant’s
letter of demand. Furthermore, the Respondent has steadfastly refused to
transfer the disputed domain name to the Complainant.
For the foregoing reasons, the Panel
concludes that the disputed domain name has been registered or used in bad
faith. Accordingly, the third condition of paragraph 6(a) of the Policy has
been fulfilled.
7. Decision
For the foregoing reasons, in
accordance with paragraphs 6(i) of the Policy and 15 of the Rules, the Panel
orders that the disputed domain name be transferred to the
Complainant.
Sebastian M. W. Hughes
Sole Panelist
Dated: September 16, 2014
