FUJITSU Limited v. tete and/or Lianqiu Li

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FUJITSU Limited v. tete and Lianqiu Li

Case No. D2006-0885

1. The Parties

The Complainant is FUJITSU Limited, of Japan, represented by Shapiro Cohen,

Canada.

The Respondent is tete and Lianqiu Li, of Guangdong, China.

2. The Domain Name and Registrar

The disputed domain name <¸»Ê¿Í¨.com> is registered with Name.com LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the

¡°Center¡±) on July 11, 2006. On July 12, 2006, the Center transmitted by email

to Name.com LLC a request for registrar verification in connection with the

domain name at issue. On July 13, 2006, Name.com LLC transmitted by email to

the Center its verification response confirming that the Respondent is listed

as the registrant and providing the contact details for the administrative,

billing, and technical contact. The Center verified that the Complaint satisfied

the formal requirements of the Uniform Domain Name Dispute Resolution Policy

(the ¡°Policy¡±), 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 August

3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response

was August 23, 2006. The Response due date was extended to September 15, 2006.

The Response was filed with the Center on September 15, 2006.

The Center appointed Susanna H.S. Leong as the sole panelist in this matter

on September 28, 2006. 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

The facts of the present case are summarized as follows:

The Complainant was founded in 1935 as Fuji Tsushinki Manufacturing Corporation.

In 1962, ¡°Fujitsu Limited¡± was officially adopted as its English corporate name

and since then, the Complainant together with all its subsidiaries and affiliated

companies have continuously and exclusively used the following marks: ¸»Ê¿Í¨ ,

FUJITSU and FUJITSU & Design (the ¡°MARKS¡±) in over 50 countries, including

in China, the country where the Respondent appears to be located. The Complainant

owns more than 900 longstanding registrations and several dozen pending applications

for the MARKS in at least 150 countries around the world on every continent,

including China. The Complainant¡¯s registrations for the MARKS date back to

1962 in Japan, 1993 in Republic of Korea, 1994 in China, 1998 in Taiwan, Province

of China, and 1999 in Hong Kong, SAR of China. The Complainant has at least

21 registrations and two pending applications for the trademark ¸»Ê¿Í¨, and at

least 29 registrations and 2 pending applications for the marks FUJITSU and

FUJITSU & Design in China alone, the country in which the Respondent appears

to be located. The MARKS are used in connection with a very broad range of goods

and services including computing products, software, telecommunications, microelectronics

and electronic devices, consulting services, system integration services, IT

infrastructure management and a variety of comprehensive industry solutions

in the areas of XML/Web services, IT infrastructure, retail and finance. The

trademark¸»Ê¿Í¨ has been registered in China by the Complainant since 2004. The

Complainant has promoted its MARKS extensively and internationally, including

China, in association with its wares and services for several decades and continues

to do so.

The Japanese Patent Office has recognized the MARKS as well-known, and has

granted to the Complainant numerous defensive registrations which cover the

majority of classes of goods and services in respect of its Japanese trademark

registrations for the MARKS.

In addition, the Complainant has registered an extensive international domain

name portfolio across most gTLDs and ccTLDs including well over three hundred

domain names comprising or consisting of the MARKS in Roman and various multilingual

characters, such as ¸»Ê¿Í¨. At least 34 of these domains are in the various .cn

subdomains, in particular .gd.cn (Guangdong), the location of the Respondent.

The Complainant uses many of its domain names to maintain a substantial Internet

presence in the form of a large, interconnected network of Fujitsu Group company

websites, all of which offer comprehensive information to consumers in many

languages, including in Chinese, about the Complainant and its vast array of

products and services.

From the time when the Complainant first became aware of the registration of

the disputed domain name <¸»Ê¿Í¨.com>, and up until about July 5, 2006, the

disputed domain name <¸»Ê¿Í¨.com> was registered to Qingrui Chen (also of

Guangdong province), the predecessor in title of the Respondent. However this

domain name was not associated with Qingrui Chen¡¯s website. Instead, queries

for <¸»Ê¿Í¨.com> were redirected to a page with the heading ¡°Money &

Sex ¨C Domain Names (Web Addresses) For Sale¡± at the URL http://www.fofa.com/cishan/3/fushitong.htm.

Subsequently, the disputed domain name was no longer redirected to the above-noted

URL for a period of time but resolved instead to a page which said ¡°Failure

to connect to Web Server¡±. As of the date of this Complaint, the former website

can still be reached by accessing it directly at the URL above, but the subject

domain name is now being redirected to a website at: URL http://www.darenwu.com/yima/domain/domain.htm

The heading on this site, which has content in both English and Chinese, reads

¡°For Sale ¨C Domain Names (Web Addresses) For Sale ¨C Make Money Quickly? Choose

a great domain name¡±. Immediately above this text on page 14 are links to ¡°www.e-pai.com¡±

and ¡°Products -> www.e-pai.com¡±. This is followed by further references /

links to <www.e-pai.com> as well as what appears to be an excerpt from

the website at <www.e-pai.com> showing the various personal and household

products and appliances that are being offered for sale on that site. This in

turn is followed by the text (on page 19 of the printout in Annex K): ¡°Buy Web

Addresses (Domain Names) ¨C visit yima.net¡±.

According to the English language information on the ¡®E-pai¡± website, the full

name of this company is ¡°E-pai Electrical Appliance Industrial Co. Ltd.¡± and

it is located in Guangzhou, Guangdong province. E-pai claims to be ¡°a combined

company which designs, produces and exports¡± a variety of small household and

personal use products, including electrical appliances. On the ¡°Contact¡± page

at URL http://www.epai.com/2/zw/en/contact.htm, E-pai¡¯s address and telephone

number are provided, together with its bank account particulars for money wire

transfers. Qingrui Chen, the prior registrant of <¸»Ê¿Í¨.com> and from whom

the Respondent acquired this domain name, is listed as the ¡°beneficiary¡± of

E-pai¡¯s bank accounts. The website at URL http://www.fofa.com/cishan/3/fushitong.htm,

to which <¸»Ê¿Í¨.com > had initially been redirected, also contains numerous

links to E-pai¡¯s website. The disputed domain name <¸»Ê¿Í¨.com> was transferred

from Qingrui Chen to the Respondent on or about July 5, 2006. This was discovered

during a routine status check of the WHOIS data during the finalization of this

Complaint. There has been no change in the use of <¸»Ê¿Í¨.com> as a result

of this transfer, as it is still being redirected to the same website at URL

http://www.darenwu.com/yima/domain/domain.htm.

5. Parties¡¯ Contentions

A. Complainant

The Complainant¡¯s contentions are summarized as follows:

1. The domain name is identical or confusingly similar to a trademark or service

mark in which the Complainant has rights.

The Complainant submits that its MARKS and trade-name ¸»Ê¿Í¨ / FUJITSU are not

only distinctive of its wares and services around the world, but both character

versions of the MARKS and trade-name have acquired, over the course of several

decades of extensive use and promotion, considerable international fame together

with the associated goodwill such that the MARKS and trade-name are instantly

recognizable by consumers globally, including in China, as being synonymous

with the Complainant.

In this case, the disputed domain name corresponds exactly to the Complainant¡¯s

Chinese character mark ¸»Ê¿Í¨ in its entirety. The Complainant cites the UDRP case

of Kabushiki Kaisha Hitachi Seisakusho (Japan Corporation) d/b/a Hitachi

Limited v. Yosi Hasidim, WIPO Case No.

D2000-1542 in which the domain name <ÈÕÁ¢.tv> is the Kanji characters

of HITACHI which is identical to the HITACHI mark in its entirety and the panelist

has concluded that given the international fame of the mark HITACHI, the use

of that mark in its entirety together with any other descriptor would be taken

as being use of the mark in connection with some business associated with the

trademark owner Hitachi. The Complainant submits that the same reasoning is

applicable in the present case, since the domain name consists entirely of the

Complainant¡¯s trademark ¸»Ê¿Í¨, it thus clearly suggests an association with the

Complainant and its products or services, such that consumers would inevitably

be lead to expect and/or believe that any website associated with the domain

name <¸»Ê¿Í¨.com> is one of the many sites that belongs to the Complainant

or its related companies. Consequently, the Complainant submits that the disputed

domain name <¸»Ê¿Í¨.com> is identical to its trademark ¸»Ê¿Í¨ and that there

are no elements in the disputed domain name that could possibly distinguish

it from, and negate confusion with, the Complainant¡¯s trademark.

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

name.

Based on the following reasons, the Complainant submits that the Respondent

cannot satisfy any of these criteria, nor can it demonstrate rights or legitimate

interests in the disputed domain name by any other means:

(a) That the Respondent does not have, and has never had any relationship with

the Complainant or any of its related companies, nor has the Complainant ever

authorized, licensed or otherwise permitted the Respondent to use the trademark

¸»Ê¿Í¨, or to register or use any domain name which incorporates the trademark

¸»Ê¿Í¨;

(b) That the domain name is not currently being used in association with any

bona fide offering of goods or services, nor has it ever been used in association

with any bona fide offering of goods or services at any time, either by the

Respondent or its predecessor in title Qingrui Chen. The only use that apparently

ever has been made of this domain name is to be merely redirected to third-party

websites which appear to (a) encourage visitors to buy ¡°good¡± domain names to

channel Internet traffic (i.e. ¡°free visitors¡±) to their sites, apparently using

<¸»Ê¿Í¨..com> as an example of how effective this strategy is; and (b) offer,

among other things, domain name registration services and consumer products,

in association with completely unrelated domain names and business names. None

of these entities, including E-pai, Qingrui Chen or the Respondent have anything

whatsoever to do with the Complainant or its MARKS. However, the Complainant

contends that they are all benefiting, and presumably generating revenue, from

the Internet traffic that is being driven - more particularly by the Internet

users that are being misdirected - to this series of sites by the well-known

nature of <¸»Ê¿Í¨.com>. The fact that this is precisely the result that is

intended by these parties, including by the registrant of <¸»Ê¿Í¨.com >,

is made abundantly clear by the text described in the redirected site at <www.darenwu.com>,

which acknowledges that the reason one has arrived at this site is because of

the interest generated by the ¡°great name¡± <¸»Ê¿Í¨.com> and not because of

the content.

(c) There is no evidence that the Respondent, who is identified (ambiguously)

in the WHOIS record as tete and/or Lianqiu Li is, or ever has been, commonly

known by the domain name <¸»Ê¿Í¨.com>, (or its Roman character equivalent)

or that it has acquired trademark, service mark or other rights in this domain.

Indeed, as described in detail above, the only entities to which the Respondent

may be related, similarly to the previous registrant, are those responsible

for or somehow associated with the websites to which <¸»Ê¿Í¨.com> is being

redirected, or which are referenced on the redirected websites (i.e. E-pai).

(d) There is no evidence that the Respondent is currently making legitimate

non-commercial or fair use whatsoever of <¸»Ê¿Í¨.com>. From the time the

Complainant first discovered the registration of <¸»Ê¿Í¨.com> to the present,

the disputed domain name has never linked to an active website involved in any

non-commercial or fair use offer of goods or services by either the Respondent¡¯s

predecessor in title Qingrui Chen or the Respondent. The Respondent has also

not established any other known presence on the Internet in association with

<¸»Ê¿Í¨.com>. On the contrary, the only use that appears to have been made

of <¸»Ê¿Í¨.com> (including its current use) is to redirect it to completely

unrelated URLs of a clearly commercial nature. It is therefore clear that the

Respondent is intentionally deriving direct or indirect commercial benefit from

<¸»Ê¿Í¨.com>, either in the form of advertising/domain name sales revenue

in conjunction with the <fofa.com> and <darenwu.com> sites, or from

the misdirected Internet traffic to the E-pai site(s).

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

Based on the following reasons, the Complainant contends that the disputed

domain name was registered and is being used in bad faith:

(a) The Complainant contends that the Respondent appears to have provided false,

or at minimum incomplete or inaccurate contact information, which is an accepted

indicator of bad faith. The name of the registrant (as well as the administrative,

technical and billing contact) listed in the WHOIS record is ambiguous, i.e.

¡°tete¡± and/or ¡°Lianqiu Li¡±. It is not clear what ¡°tete¡± is (personal name?)

nor which of these two names is actually intended to identify the registrant.

Similarly, the address information for the registrant (administrative, technical

and billing contact) is incomplete, since no street address or even post office

box, is provided. The apparent ambiguities in the WHOIS contact information

are indicative of an attempt on the part of the registrant to make it difficult

to be reached, particularly as the WHOIS information is the only means available

to the Complainant or any other third party to contact the registrant. This

flies in the face of the registrant¡¯s obligations under its service agreement

with the registrar to keep its contact information current and accurate.

(b) The Complainant contends that the Respondent registered <¸»Ê¿Í¨.com>

in order to prevent it (and/or its related companies) from reflecting its MARK

in this corresponding domain name, particularly in view of (a) the Respondent¡¯s

lack of any relationship whatsoever with the Complainant, including authorization

to use the MARK as part of a domain name or otherwise, and (b) the fact that

the Respondent cannot demonstrate any rights to or legitimate interests in <¸»Ê¿Í¨.com>.

Although paragraph 4(b)(ii) of the Policy specifically refers to the demonstration

of a pattern of conduct by the Respondent seeking to prevent trade-mark owners

from reflecting their marks in their domain names, the Complainant submits that

evidence of such pattern of conduct is not available here since it is not possible

to conduct the reverse WHOIS database lookups which would disclose other domain

names registered to the Respondent in this TLD. However, the Complainant contends

that the previous registrant Qingrui Chen, from whom the Respondent acquired

<¸»Ê¿Í¨.com>, is known to have engaged in a pattern of similar conduct, namely

the bad faith registration and use of a domain name comprising a third party

trade-mark, and the Complainant submits that this pattern is very relevant in

this case, irrespective of the relationship, if any, between the Respondent

and previous registrant. The Complainant cites the UDRP case of Wal-mart

Stores, Inc. v. Qingrui Chen, (WIPO Case ID: HK-0400040, Decision ID: DE-0400022)

in which the panelist ordered the transfer of the domain name <ÎÖ¶ûÂê .com>

(<wal-mart.com> in Chinese characters) to the Complainant Wal-Mart Stores,

Inc. The registration by Qingrui Chen of <ÎÖ¶ûÂê .com> as well the domain

name disputed herein, both of which consist entirely of the famous marks of

entities completely unrelated to him, discloses a pattern of conduct which is

clearly intended to prevent the unrelated trade-mark owners from reflecting

their marks in a corresponding domain name, and amounts to an intentional interference

with the owners¡¯ rights to use their marks in commerce. Such conduct is expressly

identified in the Policy as probative of bad faith use and registration, and

has been discussed extensively in prior Administrative Panel decisions. In particular,

it has been repeatedly held that the registration of numerous domain names that

correspond to registered trade-marks of other, unrelated and diverse companies,

is evidence of the requisite pattern of conduct for the purposes of establishing

bad faith under paragraph 4(b)(ii) of the Policy (see Nabisco Brands Company

v. The Patron Group, Inc.,WIPO Case No.

D2000-0032, Stella D¡¯Oro Biscuit Co., Inc. v. The Patron Group, Inc.,

WIPO Case No. D2000-0012, and Kabushiki

Kaisha Hitachi Seisakusho (Japan Corporation), d/b/a Hitachi, Ltd. v. Fortune

International Development Ent. Co. Limited., WIPO

Case No. D2000-0412). The Complainant submits that where, as here, a registrant

has clearly appropriated and registered as domain names the well-known trade-marks

of two completely unrelated parties who share nothing other than extensive international

reputation and fame associated with their trade-marks and trade-names, a finding

of a pattern of bad-faith conduct is inescapable. The Complainant further submits

that the bad faith conduct of Qingrui Chen is relevant to this case because

(i) <¸»Ê¿Í¨.com> has only very recently been transferred to the Respondent;

(ii) the Respondent is making the exact same use of <¸»Ê¿Í¨.com> as the previous

registrant Qingrui Chen, therefore it is reasonable to conclude that they are

connected in some way, and (iii) it has been established by UDRP precedent that

the transferee of a domain name accepts the responsibility for the infringement

of third party rights that may arise from the transfer, particularly where the

transferor is a known infringer. In this regard, the Complainant also cites

the UDRP case of Kabushiki Kaisha Sangyokeizai Shimbunsha v. Jg Kim, WIPO Case

No. D2001-0620 which in the opinion of the Complainant shares numerous analogous

facts with the present case. The Complainant submits that the facts of the Shimbunsa

case are analogous to the present case, and Panelist Li Yong¡¯s reasoning is

similarly applicable. Not only can the Respondent not claim any plausible rights

or legitimate interests in <¸»Ê¿Í¨.com> on his own account, as described

herein, but his/her lack of rights or legitimate interests in <¸»Ê¿Í¨.com>

can also be inferred from the fact that this domain was acquired from Qingrui

Chen who is known to have previously engaged in the bad faith registration and

use of a domain name corresponding to famous third party trade-mark which he

lost pursuant to a UDRP proceeding, and the Respondent is continuing to use

<¸»Ê¿Í¨.com> in the same way as Qingrui Chen. Accordingly, at the time of

acquiring <¸»Ê¿Í¨.com> from Qingrui Chen, the Respondent was, or should have

been aware that <¸»Ê¿Í¨.com> may infringe upon the legitimate rights of the

Complainant, but by accepting the transfer of the domain name, s/he also accepted

responsibility for the consequences arising directly from the transfer, namely

that as part of a known pattern of bad-faith registrations, <¸»Ê¿Í¨.com>

may be the subject of a UDRP proceeding by the owner of the corresponding well-known

trade-mark ¸»Ê¿Í¨. The Complainant accordingly submits that in view of the facts

set forth in the present case, and in the absence of the Respondent being able

to demonstrate its own rights to <¸»Ê¿Í¨.com>, the only conceivable reason

for acquiring and maintaining this registration is the bad-faith intention to

prevent the Complainant from registering its own MARK as a domain name.

(c) The Complainant submits that the Respondent¡¯s conduct prior to the filing

of this Complaint has demonstrated its intention to use <¸»Ê¿Í¨.com> primarily

for the purpose of disrupting the business of the Complainant. Since the time

the Complainant has become aware of this domain name, it has either not resolved

to an active, accessible website, or it has been redirected to websites where

domain names, including <¸»Ê¿Í¨.com>, are being offered for sale, and which

also contain numerous links to and excerpts from the E-pai website, a business

to which the Respondent¡¯s predecessor in title is obviously connected. As a

result, Internet traffic that is reasonably intended for the Complainant is

being directly diverted to both the third party websites and the E-pai sites.

The Respondent is therefore using <¸»Ê¿Í¨.com> to intentionally attract,

for commercial gain, Internet users to all of the various websites described

herein by creating a likelihood of confusion with the Complainant¡¯s MARK as

to the source, sponsorship, affiliation or endorsement of the Respondent¡¯s website,

or of any products/services offered on such website. Due to the broad brand

recognition, consumer drawing power and goodwill associated with the FUJITSU

and ¸»Ê¿Í¨ MARKS and trade-name, it is reasonable to assume consumers would inevitably

expect that a domain name consisting solely of the ¸»Ê¿Í¨ MARK in its entirety,

and any website associated therewith, would be connected with the Complainant,

particularly in view of the large number of such corresponding domain names

already owned by the Complainant. Any Internet traffic at <¸»Ê¿Í¨.com> would

thus be intended for the Complainant, yet would be diverted to the Respondent.

Disruption to the business of the Complainant similarly results if the domain

name is either inactive or is associated with a webpage indicating some kind

of server or network problem, as was temporarily the case here. In this regard,

UDRP cases have clearly established that in given factual situations, the concept

of bad faith use of a domain name includes non-use or inaction on the part of

the Respondent. This principle, originally enunciated in Telstra Corporation

Limited v. Nuclear Marshmallows, WIPO

Case No. D2000-0003 has been adopted by numerous Panels to date, including

in Hitachi, Ltd. v. Jorge Borborema, WIPO

Case No. DTV2001-0030.

B. Respondent

1. The domain name is identical or confusingly similar to a trademark or service

mark in which the Complainant has rights.

The Respondent contends that the disputed domain name <xn--zqsv0e014e.com>

is registered on May 18, 2004 ¨C a date which is earlier than the trademark registrations

of the Complainant¡¯s trademark ¸»Ê¿Í¨ in China. Consequently, the Respondent argues

that it is impossible for the Respondent to know that <¸»Ê¿Í¨> is the Complainant¡¯s

trademark in China. The Respondent argues that there are 45 trademark classes

and the Complainant¡¯s trademark registrations only cover several classes. Furthermore,

the trademark <¸»Ê¿Í¨> in the Chinese language was registered in the second

half of the year 2004. Therefore, the trademark ¸»Ê¿Í¨ in the Chinese language

was not a famous trademark in China in 2004. Even now, the Respondent contends

that anyone in China may register the trademark ¸»Ê¿Í¨ in the other classes if

he likes because ¸»Ê¿Í¨ is not a well-known trademark in China. This is unlike

the trademark FUJITSU which the Respondent accepts may be a famous mark of the

Complainant. The Respondent further submits that the trademark ¸»Ê¿Í¨ consist of

generically common Chinese characters that are not distinctive and therefore

could not be registered as a trademark without a drawing.

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

name.

The Respondent contends that he has rights and legitimate interests in respect

of the domain name according to the Policy. The disputed domain name <¸»Ê¿Í¨.com>

has been owned by the Respondent since May 18, 2004, much earlier than the registration

of the Complainant¡¯s trademark ¸»Ê¿Í¨ in Chinese characters in China. The Respondent

explained that when a domain name is registered, the domain name will be redirected

to the website of Registrar Agent by the Registrar Agent first especially when

the domain name has not yet be used by the Registrant. The Respondent contends

that the following websites listed by the Complainant, <fofa.com>, <darenwu.com>,

<epai.com>, and <e-pai.com)> all belong to the Registrar Agent yima.net.

The Respondent has contacted the Registrar Agent yima.net, and the Registrar

has acknowledged that the above several domains belonged to them. The Respondent

further contends that Chen Qingrui or Qingrui Chen is the employee of the Registrar

Agent yima.net. She often used her name to snap-register domain names and then

transfers the domain names to the customer¡¯s name later. The Respondent contends

that this is a common practice amongst many other Registrar Companies. The Respondent

submits that the websites at URL http://www.fofa.com/cishan/3/fushitong.htm;

http://www.darenwu.com/yima/domain/domain.htm; www.e-pai.com; and http://www.epai.com/2/zw/en/contact.htm

all belong to the Registrar Agent yima.net and they have nothing to do with

the Respondent.

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

Based on the following reasons, the Respondent contends that he has not registered

and used the disputed domain name in bad faith:

(a) In respond to the Complainant¡¯s contention that the Respondent has provided

false, incomplete or inaccurate contact information, the Respondent argued that

the name of the registrant (as well as the administrative, technical and billing

contact) listed in the WHOIS record is very specific and clear - ¡°tete¡± is the

shop name of the Respondent and ¡°Lianqiu Li¡± is the name of the Respondent.

Similarly, the address information for the registrant (administrative, technical

and billing contact) is complete - the Respondent lives in the village. The

entire address is like that found in the Whois data, which the Respondent has

received a hard copy from WIPO. This is evidence that the address information

for the registrant is complete, specific and clear. If the Whois data is not

complete, the Respondent will not be party to this Administrative Proceeding

and he would not be able to file this Response.

(b) The Respondent contends that he had acquired the domain names lawfully,

in good faith, and in the legitimate interests of its company. The Respondent

contends that he has great vested interest in the domain name and the Respondent

opts to provide the Panel with physical samples of the listed proprietary products

that were researched, designed and manufactured by and at the Respondent¡¯s facilities.

(c) The Respondent cites the UDRP case of Telstra Corporation Limited v.

Nuclear Marshmallows,WIPO Case No. D2000-0003

in which the panelist has ruled that to succeed the Complainant must prove evidence

of bad faith in registration and in use of the disputed domain name. Both conditions

must be satisfied conjunctively. The Respondent contends that the Complainant

is unable to present any evidence to prove that the domain name was registered

and is being used in bad faith. The Complainant has merely listed a number of

websites which have nothing to do with the Respondent.

(d) The Respondent further contends that the disputed domain name <¸»Ê¿Í¨.com>

has been used and is being used to construct a non-profit charity site before

any notice to the Respondent of the present dispute. The website can be visited

and will be used as a charity site forever. The Respondent contends that he

is a benevolent man who aspires to do charity to help the poor. Consequently,

the Respondent has registered a series of domain names concerning charity, kindness

and benevolence, such as <chinacharity.com.cn>, <cishan.com> (Charity.com

of Chinese spell´ÈÉÆ), ´ÈÉÆ.com (Charity.com of Chinese IDN, Multilingual Domain

xn--30Rr7Y.com), °®ÐÄ.com (Benevolence.com of Chinese IDN, Multilingual Domain

xn--15T232B.com), <cibei.com> (Mercy.com of Chinese spell ´È±¯), ´È�ú.com

(Kind-Help.com of Chinese IDN, Multilingual Domain xn--5hUs83A.com), <daode.com

>(moral.com of Chinese spell µÀµÂ).

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this

proceeding and obtain the transfer of the disputed domain name, the Complainant

must establish that each of the three following elements is satisfied:

1. the domain name is identical or confusingly similar to a trademark or service

mark in which the Complainant has rights;

2. the 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.

Paragraph 4(a) of the Policy clearly states that the burden of proof lies with

the Complainant to establish that all these three elements are satisfied in

this proceeding.

Furthermore, pursuant to paragraph 15(a) of the Rules, the Panel shall decide

the Complaint on the basis of the statements and documents submitted and in

accordance with the Policy, the Rules and any rules and principles of law that

it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules,

if a party, in the absence of exceptional circumstances, does not comply with

any provision of, or requirement under, the Rules of any request from the Panel,

the Panel shall draw such inferences therefrom, as it deems appropriate.

On the basis of the evidence introduced by the Parties and in particular with

regard to the content of the relevant provisions of the Policy, (paragraphs

4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Complainant has produced substantial evidence to demonstrate that it has

registered trademark rights in the trademark FUJITSU and its Chinese equivalent

¸»Ê¿Í¨ in many countries throughout the world including China.

The Panel rejects the Respondent¡¯s contention that the trademark ¸»Ê¿Í¨ is a mark

that consists of generically common Chinese characters and is consequently not

distinctive. The trademark ¸»Ê¿Í¨ is the Kanji characters of FUJITSU. In the Chinese

language, the trademark ¸»Ê¿Í¨ as a whole has no inherent meaning and is not a

descriptive term. In general, to those who are well versed in the Chinese language,

the first two characters ¡®¸»Ê¿¡¯ makes reference to the icon of Japan, Mt. Fuji

¨C the generally accepted translation of Mt. Fuji is ¸»Ê¿É½. Thus, the Chinese translation

of ¡®FUJI¡¯ is ¡®¸»Ê¿¡¯ and most Chinese Internet users would recognise this usage.

Taken as a whole, the Panel finds that Complainant¡¯s trademark ¸»Ê¿Í¨ to be distinctive

and it is a trademark in which the Complainant has rights.

The Panel further rejects the Respondent¡¯s contention that the Complainant

has no rights at the time of the registration of the disputed domain names as

the trademark ¸»Ê¿Í¨ has not been registered yet in China. Even if the Complainant

has not obtained registered rights in the trademark ¸»Ê¿Í¨ at the time of the registration

of the disputed domain name, the Complainant continues to have rights in the

unregistered trademark through extensive usage of the mark and by the publicity

and advertising campaigns conducted by the Complainant throughout China. In

fact, such unregistered marks are also protected under unfair competition laws

in China. Several panels under the Policy have decided that the Policy affords

protection not only to those having rights in registered trademarks but also

to those having common law rights in their trade or service marks. See Bennett

Coleman & Co Ltd. v. Steven S Lalwani, WIPO

Case No. D2000-0014; SeekAmerica Networks Inc. v. Tariq Masood and Solo

Signs, WIPO Case No. D2000-0131;

Cedar Trade Associates, Inc. v. Gregg Ricks NAF Case No. 93633; and

Passion Group Inc. v Usearch Inc. AF-0250. As such, the Panel finds

that the Complainant has rights in the trademark ¸»Ê¿Í¨ in China. The Complainant

has also adduced evidence to show that through extensive marketing and sales

promotion, the average consumer in China has come to recognise ¸»Ê¿Í¨ as the Chinese

equivalent of the Complainant¡¯s trademark FUJITSU. The Panel accepts and finds

that the Complainant¡¯s trademark FUJITSU and its Chinese equivalent ¸»Ê¿Í¨ are

well known marks in which the Complainant has rights.

The disputed domain name <¸»Ê¿Í¨.com> comprises an exact reproduction of

the Complainant¡¯s trademark ¸»Ê¿Í¨ and the suffix ¡®.com¡¯. In assessing the degree

of similarity between the Complainant¡¯s mark and the disputed domain names,

the Panel shall have regard to the degree of visual, aural or conceptual similarity

between them and where appropriate, evaluate the importance to be attached to

these different elements. The issue of degree of similarity between the Complainant¡¯s

mark and the disputed domain names is to be considered from the perspective

of the average consumer of the goods or services concerned and in this case,

the average consumer is the Internet user seeking to purchase or download the

Complainant¡¯s electronic products and services. In the case of a multilingual

domain name like the disputed domain name in the present case, the question

of confusion must be addressed taking into account the average Internet user

who is well versed and familiar with the Chinese language.

The Chinese characters ¡°¸»Ê¿Í¨¡± is the dominant and the distinctive element of

the Complainant¡¯s mark and it has been reproduced in its entirety in the disputed

domain name. The Panel finds that the three Chinese characters ¡°¸»Ê¿Í¨¡± portion

is the most prominent part of the disputed domain names which will attract consumers¡¯

attention. The Panel finds that the suffix ¡®.com¡¯ denotes that this domain name

is in the generic top level domain and the addition of such a suffix to the

trademark ¸»Ê¿Í¨ is non-distinctive.

Bearing in mind the following factors, in particular (a) the fame of the Complainant¡¯s

trademark; (b) the distinctive character of the Complainant¡¯s mark ¸»Ê¿Í¨; (c)

the dominant component of the disputed domain name; and (d) the visual, aural

and similarities between them, the Panel therefore finds that the disputed domain

name <¸»Ê¿Í¨.com> identical or confusingly similar to a trademark or service

mark in which the Complainant has rights.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, a respondent may establish its

rights or legitimate interests in the domain name, among other circumstances,

by showing any of the following elements:

¡°(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have

been commonly known by the domain name, even if you have acquired no trademark

or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of

the domain name, without intent for commercial gain to misleadingly divert consumers

or to tarnish the trademark or service mark at issue.¡±

Based on the following reasons the Panel finds that the Respondent has no rights

or legitimate interests in the disputed domain names:

1. The Respondent has not adduced concrete evidence in his Response to show

that he has rights or legitimate interests in the disputed domain name other

than mere assertions that he ought to have rights to the domain name since it

was registered before the Complainant has obtained registration rights in the

trademark ¸»Ê¿Í¨ in China. This argument is untenable as explained in the foregoing

paragraphs, given the fame of the Complainant¡¯s trademark and the fact that

the Complainant has rights in unregistered marks through extensive usage. The

Response from the Respondent concerning his relationship with Chen Qingrui or

Qingrui Chen and the Registrar Agent yima.net also adds little weight to the

argument that he has rights or legitimate interests in the disputed domain name.

The fact that the Respondent has no relationship with Chen Qingrui or Qingrui

Chen and the Registrar Agent yima.net does not confer on him independently rights

or legitimate interests in the disputed domain name that are not previously

present. It is an accepted general principle of law that purchasers or transfers

of registrations must conduct due diligence in the acquisition process and the

Latin maxim ¡®caveat emptor¡¯ is equally applicable in this case. The Respondent

as successor in title of the domain name registration acquires the domain name

subject to the limitations of all existing prevailing rights and legitimate

interests (in fact, these rights and legitimate interests of the Complainant

as trademark owner are already in existence prior to the transfer or acquisition

of the disputed domain name by the Respondent) and he cannot possibly acquire

better rights in the disputed domain name (unless concrete contrary evidence

can be adduced) than his predecessor in title. Given the fame of the Complainant¡¯s

mark ¸»Ê¿Í¨ internationally and the extensive use of this mark in China, it is

not conceivable that the Respondent did not know of the Complainant¡¯s rights

in the trademark before or at the time of the acquisition of the disputed domain

name;

2. The Complainant¡¯s trademark ¸»Ê¿Í¨ is a word with no meaning or connection

with the goods or services sold under it. Thus the Respondent could not be using

the word ¸»Ê¿Í¨ in a descriptive sense. However, the Respondent did provide plausible

explanations in its choice of the disputed domain name which is confusingly

similar to ¸»Ê¿Í¨;

3 The Respondent has not provided evidence of a legitimate use of the domain

names or reasons to justify the choice of the word ¡°¸»Ê¿Í¨¡± in its business operations.

In fact, there is no evidence that the Respondent is engaged in any business

operations at all;

4. There was no evidence to show that the Complainant has licensed or otherwise

permitted the Respondent to use its trademark or to apply for or use any domain

names incorporating the trademark ¸»Ê¿Í¨;

5. There is no indication whatsoever that the Respondent is commonly known

by the disputed domain name and/or is using the domain name in connection with

a bona fide offering of goods or services; and

6. The Complainant and its mark ¸»Ê¿Í¨ enjoy a considerable reputation with regard

to electronic and computer goods and services in Japan and in many countries

in the world including China. Consequently, in the absence of plausible contrary

evidence from the Respondent, the mark ¸»Ê¿Í¨ is not one that traders could legitimately

adopt other than for the purpose of creating an impression of an association

with the Complainant.

The Panel finds for the Complainant on the second part of the test.

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 domain name in bad faith,

namely:

(i) circumstances indicating that the Respondent has registered or 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 the complainant, for

valuable consideration in excess of the Respondent¡¯s documented out-of-pocket

costs directly related to the domain name; or

(ii) the Respondent has registered the 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 the Respondent has engaged in a pattern of such conduct;

or

(iii) the Respondent has registered the domain name primarily for the purpose

of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to

attract, for commercial gain, Internet users to the Respondent¡¯s 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 the Respondent¡¯s

website or location or of a product.

The Panel concludes based on the case file that the circumstances referred

to in Paragraph 4(b)(iv) of the Policy are applicable to the present case and

upon the evidence of these circumstances it is adequate to conclude that the

Respondent has registered and used the disputed domain names in bad faith.

The reasons for the Panel¡¯s conclusion are as follows:

(a) Firstly, the Panel finds that the Complainant and its mark ¸»Ê¿Í¨ enjoys a

considerable reputation with regard to electronic and computer goods and services

in Japan and in many countries in the world including China. Therefore, the

Panel finds that it is not conceivable that the Respondent would not have had

actual notice of the Complainant¡¯s trademark rights before or at the time of

the registration of the domain name. Consequently, it is pertinent for the Respondent

to provide a plausible explanation of its choice in the disputed domain name,

failing which the Panel draws the conclusion that the disputed domain name was

registered in bad faith with intent to create an impression of an association

with the Complainant and its electronic and computer goods and services. The

Respondent argued that he had acquired the domain names lawfully, in good faith,

and in the legitimate interests of its company. The Respondent contends that

he has great vested interest in the domain name and the Respondent opts to provide

the Panel with physical samples of the listed proprietary products that were

researched, designed and manufactured by and at the Respondent¡¯s facilities.

However, contrary to what the Respondent has claimed, there is not a single

shred of evidence adduced by him in the form of attachments or annexes to the

Response that convincingly demonstrates the conduct of legitimate business operations

by the Respondent. Such crucial evidence should have been adduced before the

Panel to substantiate the Respondent¡¯s contentions. It is most unfortunate that

this has not been done by the Respondent. The Panel is thus left to draw her

inferences in the absence of substantial supporting evidence from the Respondent.

(b) The Panel agrees with the Respondent that in order for the Complainant

to succeed under the Policy, the Complainant must prove that the disputed domain

name has been registered AND used in bad faith by the Respondent. This is an

established principle well documented in the UDRP decisions. It is also an accepted

rule that non-use or inactive websites of the disputed domain name could constitute

bad faith on the part of the Respondent. It is important to note that the since

the acquisition or transfer of the disputed domain name to the Respondent, the

domain name has remained inactive and has not been used by the Respondent in

connection with a bona fide or legitimate offerings of goods or services.

(c) The Respondent has contended that the disputed domain name <¸»Ê¿Í¨.com>

has been used and is being used to construct a non-profit charity site before

any notice to the Respondent of the present dispute. The website can be visited

and will be used as a charity site forever. The Respondent contends that he

is a benevolent man who aspires to do charity to help the poor and he has registered

a series of domain names concerning charity, kindness and benevolence, such

as <chinacharity.com.cn>, <cishan.com> (Charity.com of Chinese spell

´ÈÉÆ), <´ÈÉÆ.com> (Charity.com of Chinese IDN, Multilingual Domain xn--30Rr7Y.com

), <°®ÐÄ.com> (Benevolence.com of Chinese IDN, Multilingual Domain xn--15T232B.com),

<cibei.com> (Mercy.com of Chinese spell ´È±¯), ´È�ú.com (Kind-Help.com of

Chinese IDN, Multilingual Domain xn--5hUs83A.com), <daode.com> (moral.com

of Chinese spell µÀµÂ). Even if we assume that the Respondent¡¯s claims are credible

and true, nevertheless the Respondent has not explained satisfactorily the reasons

behind his choice of the domain name <¸»Ê¿Í¨.com> for this charitable website

which is identical or confusingly similar to the Complainant¡¯s trademark ¸»Ê¿Í¨

that is of considerable international fame. Given the fame of the Complainant¡¯s

trademark ¸»Ê¿Í¨, the logical conclusion one would draw on the Respondent¡¯s choice

of domain name, in the absence of plausible contrary evidence, would be that

the Respondent is riding on the fame and popularity of the Complainant¡¯s trademark

in the promotion of his alleged charitable website. If the Respondent is allowed

to use a domain name that is identical or confusing similar to the Complainant¡¯s

famous or well known trademark, the public may be misled with regard to the

issue of sponsorship of the website believing that the Respondent¡¯s alleged

charitable website is in some way associated or sponsored by the Complainant

when this is not true.

Furthermore, it has been more than two years since the transfer of the disputed

domain name to the Respondent but the alleged charitable website which the disputed

domain name is supposedly to resolve unto has yet to materialize. Finally, the

fact that the Respondent has registered all these generic domain names with

references to charity, benevolence and kindness does not prove concretely that

the Respondent is in fact engaged, in anyway, in such charitable organizations

or related activities. The Respondent has not demonstrated that he is using

the disputed domain name for legitimate non-commercial or fair use purposes.

(d) Based on the evidence adduced before the Panel, the Panel finds that the

Complainant has established a case of registration and use of the disputed domain

name in bad faith. This case has not been successfully rebutted by the Respondent.

This is the conclusion that the Panel has come to taking into consideration

the fame of the Complainant¡¯s trademark; the conduct of the Respondent pertaining

to the use of the disputed domain name; the lack of concrete evidence by the

Respondent to substantiate his assertions and claims; and the inability of the

Respondent to explain satisfactorily the choice of the disputed domain name.

In this regard, it is important to note that the situations stated in paragraph

4(b) of the Policy constituting bad faith are not exhaustive and the Panel accepts

the Complainant¡¯s submission that based on the facts and all the other evidence

adduced, it has successfully proved that the Respondent has registered and used

the disputed domain names in bad faith.

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 <¸»Ê¿Í¨.com> be

transferred to the Complainant.

Susanna H.S. Leong

Sole Panelist

Dated: October 12, 2006