standardlife.cn，The Standard Life Assurance Company 投诉Hongwei Ren aka Mr. Ren Hong aka John Wong of "Credit Shanghai" 胜诉
发表时间：2007-10-20 已被阅读
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ADMINISTRATIVE PANEL DECISION Case No. DCN-0500024 Complainant: The Standard Life Assurance Company Respondent: Hongwei Ren aka Mr. Ren Hong aka John Wong of "Credit Shanghai" Domain Name: <standardlife.cn> Registrar: EasySpace Limited 1. Procedural History The complainant in this case is Standard Life Insurance Company, a company registered in Scotland, United Kingdom ("Claimant"). Its address is Standard Life House, 30 Lothian Road, Edinburgh, Scotland, EH1 2DH, United Kingdom. Its authorized representative in these proceedings is Peter Bullock of Masons, Hong Kong. The respondent is Hongwei Ren aka Mr. Fen Hong aka John Wong of "Credit Shanghai" ("Respondent"). Respondent gives his address as Dan Feng Hospital, Dan Feng County, Shaaxi Province, 726200 China. Respondent has not appointed any representative in these proceedings. The domain name in dispute is <standardlife.cn>. The Registrar of the domain name at issue is EasySpace Limited, the address of which is Fleming Pavilion, Todd Campus, West of Scotland Science Park, Glasgow G20 0XA, Scotland, United Kingdom (the "Registrar"). On 26 February 2005, pursuant to the CNNIC Domain Name Dispute Resolution Policy (“the CNDRP”) of 30 September 2002 of China Internet Network Information Center (“CNNIC”), the Rules for CNNIC Domain Name Dispute Resolution Policy (“the Rules”) and Hong Kong International Arbitration Centre Supplemental Rules to China Internet Network Information Center Domain Name Dispute Resolution Policy (“the HKIAC Supplemental Rules”), the Complainant submitted a complaint in the English language to the Hong Kong International Arbitration Centre (“the HKIAC”) and elected this case to be dealt with by a one-person panel. On 26 February 2005, HKIAC sent to the complainant by email an acknowledgement of the receipt of the complaint and reviewed the format of the complaint for compliance with the CNDRP, the Rules and the HKIAC Supplemental Rules. All correspondence from and to the HKIAC described herein was in the English language. MSD1107.DOC;1 1
On 3 March 2005, the HKIAC transmitted the Complaint to the Respondent. Notification to Respondent was made in both the English and Chinese languages. The HKIAC received payment in the correct amount for a single-person panel. On 8 March 2005, the HKIAC served a Notification of the Commencement of the Proceedings on Respondent. Service of the Notification of the Commencement of the Proceedings was simultaneously made on CNNIC and the Registrar. The Notification stated that Respondent had twenty (20) calendar days from 8 March 2005 in which to submit a response. Respondent failed to submit a response within the required time. On 26 February 2005 the HKIAC requested the Registrar to confirm that the domain name at issue was registered by Respondent. On 28 February 2005, the Registrar confirmed that the domain name at issue was registered by Ren Hong, and that when the Registrar advised Respondent of a possible claim on the domain name by Complainant, it received an email response under the name of John Wong having an email address of johnwongmbox@yahoo.com. The registration agreement is in the English language. Since the Respondent did not file a response in accordance with the time specified in the Rules the HKIAC Supplemental Rules, and the Notification, on 30 March 2005 the HKIAC informed Complainant and Respondent by email about the default, stating that, as Respondent did not file a response within the required time, the HKIAC would appoint the panelist to proceed to render the decision, in the absence of a response by Respondent. On 15 April 2005, the HKIAC gave notice to the potential candidate for the panelist, M. Scott Donahey, requesting him to confirm whether he would accept the appointment as a panelist for this case, and if so, whether he could maintain impartiality and independence between the parties in this case. On 18 April 2005, Mr. M. Scott Donahey confirmed by email to the HKIAC, his agreement to accept the appointment and declared that he was able to maintain his impartiality and independence in dealing with this case. The HKIAC notified the parties that the Panel in this case had been selected, with M. Scott Donahey acting as the sole panelist. The Panel determines that the appointment was made in accordance with the Rules, Art. 26(i). On 19 April 2005, the HKIAC transferred the files of this case to the Panel. By letter dated 16 April 2005, the HKIAC notified the Panel that its decision was due by 30 April 2005. 2. Factual Background For the Complainant The Complainant is a mutual company and is in the business of providing international financial services worldwide. Complainant has branch, subsidiary or joint venture offices in, among other MSD1107.DOC;1 2
locations, Hong Kong and China. Complainant has registered the trademark STANDARD LIFE in 18 jurisdictions around the world, including Hong Kong and China. Its registrations in China date to March 1999 and STANDARD LIFE is registered in Chinese characters and also in the Roman alphabet. Complaint, Annex 5. Complainant has registered 52 domain names that incorporate Complainant's STANDARD LIFE work. Complaint, Annex 6. For the respondent Respondent registered the domain name <standardlife.cn> on 25 November 2004. Complaint, Annex 1. 3. Parties’ Contentions The Complainant Complainant asserts that the domain name at issue is identical or confusingly similar to Complainant’s registered trademarks, in that the domain name at issue consists of Complainant's mark with the country code suffix, cn. Complainant further alleges that Respondent has no rights or legitimate interests in respect of the domain name, nor can it have. Complainant argues that at the time Complainant registered its trademark in China there was no indication that Respondent had registered such a mark, nor is there any reason to believe that Respondent has since attempted to register STANDARD LIFE in China or elsewhere. There is no conceivable legitimate use to which Respondent can put the domain name at issue. Respondent has, since registration of the domain name at issue, used the domain name to resolve to various URL's including, www.swissbank.com.cn and www.totalcoveruk.com, the latter of which is the URL to which the domain name currently resolves. The address given on the web site is the location of Credit General Group PLC, a company whose accounts are unavailable and delinquent. The web site to which the domain name at issue resolves purports to offer home, life, automobile, and travel insurance quotes and products to residents of the United Kingdom, the United States, and China. Finally, Complainant alleges that the domain name at issue has been registered or is being used in bad faith. Complainant alleges that Respondent is using the domain name to attract potential internet users to a site at which products directly competitive with those of Complainant are offered for sale. Complaint, Annex 7. In an email to the Registrar, Complainant's counsel, and "John Wong," Respondent Hong Wei Ren claims to have no relationship to the purported operator of the web site. Complaint, Annex 8. The Respondent The respondent did not file a response within the stipulated time.
MSD1107.DOC;1 3
4. Findings A. Respondent in Default The Rules, Article 31 provides that “[i]f a Respondent does not submit a response, the Panel shall, in absence of exceptional circumstances, decide the dispute based upon the complaint.” The Rules, Article 34 provides in pertinent part that “[i]n the event that a party, in the absence of exceptional circumstances, does not comply with any of the provisions established by these Rules . . . the Panel shall proceed to a decision on the complaint.” The Panel finds no exceptional circumstances to exist, and it will proceed to determine the dispute based upon the complaint. B. The Language of the Proceedings Article 6 of the CNDRP provides: “The language of the domain name dispute resolution proceeding shall be Chinese, unless otherwise agreed by the parties or determined by the Panel.” Article 8 of the Rules provides in pertinent part: “Unless otherwise agreed by the Parties or determined in exceptional cases by the Panel, the language of the domain name dispute resolution proceedings shall be Chinese.” In the present case, the domain names at issue were registered in ASCII characters using the Roman alphabet. The registrar and the Complainant are residents of Scotland, the United Kingdom, and the sole panelist is a resident of the United States of America, all English speaking countries. The Registrar’s registration agreement is in English. The complaint was drafted in English. All correspondence among the Center, the Registrar, the parties, and the Panel is in English. The domain name registration agreement is in English. The Panel finds that the above facts constitute a sufficiently exceptional case, and the Panel determines that the language of the proceedings shall be English. C. The Merits Article 8 of CNDRP provides that a complaint against a registered domain name shall be supported if the following conditions are fulfilled: (i) the disputed domain name is identical with or confusingly similar to the Complainant's name or mark in which the Complainant has civil rights or interests; (ii) the disputed domain name holder has no right or legitimate interest in respect of the domain name or major part of the domain name; (iii) the disputed domain name holder has registered or is using the domain name in bad faith. Article 7 of CNDRP states that the complainant and the respondent shall bear the burden of proof for their own claims. MSD1107.DOC;1 4
Article 31 of the Rules provides in pertinent part that “[t]he Panel shall . . decide a complaint on the basis of the statements and documents submitted and in accordance with [the CNDRP], as well as any rules and principles of law which it deems applicable.” The Panel believes that in the primary instance it must apply the CNDRP and the Rules. In applying the CNDRP and the Rules, the Panel will look to prior CNDRP decisions for assistance. In doing so, the Panel notes that several of the existing CNDRP cases decided by panelists of the HKIAC have been written in or translated into English. The Panel notes with approval that in many of those decisions, the Panel has cited decisions made under the UDRP. Because the CNDRP is based on, although it is in important respects significantly different from, the UDRP, the Panel believes that decisions made under the UDRP would assist it in applying the CNDRP, especially where the provisions in the CNDRP are identical or closely similar to those in the UDRP. Where the policies are different, the Panel will take care to point out the differences and to distinguish the reasoning under dissimilar provisions. Based on the complaint and the attached documents submitted by the complainant, the CNDRP, and the Rules, this Panel finds as follows: 1) Identical or Confusing Similarity Respondent registered the disputed domain name on 25 November 2004. Complainant however had registered its trademark STANDARD LIFE in China in both Chinese characters and in the Roman alphabet in March 1999, more than five years earlier. Complainant has an affiliate operating in China. The domain name was registered with a registrar located in Scotland, United Kingdom, where Complainant's home office is located. The domain name resolves to a web site of a company purportedly located in the United Kingdom, where Complainant's home office is located. In the disputed domain name, <standardlife.cn>, “.cn” is the country code domain name. The remaining part, after disregarding the “.cn” country code Top Level Domain, is identical to, or confusingly similar to, the STANDARD LIFE mark in which the complainant has civil rights. Maxtor Corporation v. Shenyang Shixin Co., Ltd., HKIAC Case No. DCN-0300001. Accordingly, the Panel finds that Complainant has satisfied the first condition under Article 8 of the CNDRP. 2) Rights or Legitimate Interests of Respondent Complainant has alleged that Respondent has no right or legitimate interest in respect of the domain name. Article 7 of the CNDRP provides that “[t]he Complainant and the Respondent shall bear the burden of proof for their own claims.” If the Respondent has any burden to prove a claim it must be to show that the Respondent has a right or legitimate interest in respect of the domain name. If this were not true, then it is difficult to see where Respondent has any burden of proof, a result that would make Article 7 non-sensical. Accordingly, the Panel holds that Article 7, when read together with Article 8(ii), requires a Respondent to bear the burden of proof to show that the Respondent has a right or legitimate interest in respect of the domain name. MSD1107.DOC;1 5
In this case Respondent has failed to respond and address Complainant’s contention that no such right or interest exists. Accordingly, the Panel finds that Complainant has satisfied the second condition under Article 8 of the CNDRP. 3) Bad Faith Article 9 of CNDRP provides that in any of following circumstances, the conduct of the holder of the domain name that is subject to the complaint amounts to registration or use of a domain name in bad faith: (i) the disputed domain name holder has registered or acquired the domain name for the purpose of selling, renting or otherwise transferring the domain name to obtain unjustified benefits; (ii) the disputed domain name holder registered the domain name in order to prevent the owners of the name or mark from reflecting the name or the mark in a corresponding domain name, provided that the domain name holder has been engaged in a pattern of such conduct; (iii) the disputed domain name holder has registered or acquired the domain name for the purpose of damaging the Complainant's reputation, disrupting the Complainant's normal business or creating confusion with the Complainant's name or mark so as to mislead the public; (iv) other circumstances which may prove the bad faith. CNDRP Article 9(i) differs from UDRP ¶4(b)(i).1 First of all, under the UDRP the purpose that a potential seller of a domain name must possess in order to come within the rubric of the UDRP section must be the “primary” purpose. Under the CNDRP it is not required that the purpose be “primary.” Under the UDRP the nature of the purpose must be to sell or otherwise transfer the domain name to the trademark holder or a competitor of same for consideration in excess of the seller’s costs directly related to the domain name. Under the CNDRP the nature of the purpose need only be “to obtain unjustified benefits.” Clearly the reach of CNDRP Article 9(i) is potentially much broader than is that of its sister provision in the UDRP. Applying CNDRP Article 9(i) to the facts of this case, Respondent has used the domain name at issue to resolve to a web site at which products and services directly competitive with those of Complainant are offered for sale. As the domain name at issue consists almost entirely of Complainant’s trademark, which is certainly a non-generic, non-descriptive mark, any value that the domain names may have are related virtually entirely to the good will that Complainant has built up over its decades of doing business. By trading on the good will of the Complainant, the Panel finds that
1 “[T]he following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the domain name 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 your documented out-of-pocket costs directly related to the domain name . . . .” UDRP, ¶4(b)(i). MSD1107.DOC;1 6
Respondent has attempted “to obtain unjustified benefits” in violation of CNDRP Article 9(i). Thus, the Panel finds that Respondent has used the domain names at issue in bad faith. 5. Decision Based on the above analysis, the Panel decides that: (1) the domain name at issue is identical with or confusingly similar to a mark in which Complainant has civil rights or interests; (2) Respondent has no right or legitimate interest in respect of the disputed domain name, and; (3) Respondent has registered and has used the domain name in bad faith. Accordingly, pursuant to CNDRP Article 13, the Panel decides that the disputed domain name, <standardlife.cn> should be transferred to Complainant. Dated: 29 April 2005 ________________________________________ M. Scott Donahey Sole Panelist MSD1107.DOC;1 7
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