Sasol Limited v. 郑楚和 (Zheng Chu He)
原告为Sasol Limited, represented by Daniel Greenberg of Lexsynergy Limited （“原告”）。被告为郑楚和 / 郑楚和（“被告”）China。
有争议的域名是<sasol.vip>，在Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn)注册。
David L. Kreider (柯瑞德先生) 陪审团成员。
原告于August 22, 2017 向国家仲裁院提交诉状的电子版本；国家仲裁院于August 22, 2017 收到了原告诉状的有形文件版本。
Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 于Aug 24, 2017 通过发给国家仲裁院的电子邮件确认<sasol.vip> 域名系在Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 注册，并且被告是目前域名的注册人。Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 已经核实被告受Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 注册合同约束，因此同意解决任何第三方依照由互联网名称与数字地址分配机构 (“ICANN”) 于 1999 年 10 月 24 日批准的《统一域名争议解决政策》（《政策》），和由ICANN董事会于2013年9月28日批准的《统一域名争议解决政策之规则》（《规则》），提起的域名争议。
在August 25, 2017 ，发出投诉和行政程序开始通知（“开始通知”），并限定最后期限September 14, 2017。接通知后，被告可对通过电子邮件、邮寄、传真向域名注册人提供的技术、管理及帐务联系人传送，以及通过电子邮件向 postmaster@SASOL.VIP传送的原告诉讼状做出应诉。
应于August 27, 2017 及时提交应诉状，并应系完整和准确的。
在 September 19, 2017，根据原告由只含一人的陪审团裁决争议的请求，国家仲裁院指定David L. Kreider (柯瑞德先生)担任陪审员。
24. The Complainant relies on its registered trademarks referred to in paragraph  [c] above.
25. The Complainant also relies on common law rights. By virtue of its extensive trading and marketing activities, the Complainant has acquired a substantial reputation and goodwill in the mark SASOL such that it is recognized by the public as distinctive of the Complainant’s petroleum and chemical goods and services. The Complainant refers in particular to paragraph  [i].
26. The Complainant also relies on the fact that, as explained below, the Respondent’s activities presuppose that the Complainant’s business was known and identified by the name and mark SASOL.
(ii) Identical or Confusing Similarity
27. The Domain is identical to the Complainant’s SASOL trademark.
28. The Domain is identical to the Complainant’s trademark, incorporating the trademark in its entirety. The only difference between the trademark and the Domain is the use of “.vip” the generic Top Level Domain (gTLD). The addition to a trademark of a gTLD has no capacity to distinguish a domain name from a trademark. See Dassault (Groupe Industriel Marcel Dassault) v. Ma Xiaojuan, D2015-1733 (WIPO November 22, 2015). In addition, the addition of a gTLD is disregarded as insignificant for purposes of determining the similarity between the Domain and the trademark, because the TLDs are functionally necessary to operate the domain name. See Missoni S.p.A. v. Colin Zhao, DCC2010-0004 (WIPO July 21, 2010).
29. The Complainant’s trademark rights to SASOL have previously been established in twelve UDRP decisions.
[b.] The Respondent has no rights or legitimate interests in respect of the domain name that is the subject of the complaint. ICANN Rule 3(b)(ix)(2); ICANN Policy 4(a)(ii).
30. The Complainant asserts that, for the reasons stated below, it has made a prima facie case that the Respondent should be considered as having no rights or legitimate interests in the Domain and that the burden now shifts to the Respondent. See G.D. Searle v. Martin Mktg., 118277 (Nat. Arb. Forum, Oct. 23, 2002) (where complainant has asserted that respondent has no rights or legitimate interests it was incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
31. Dealing with each of the subparagraphs of paragraph 4(c) of the ICANN policy in turn:
(i.) Whether, before any notice to the Respondent of the dispute, Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name is in connection with a bona fide offering of goods or services.
32. The Complainant has no association with the Respondent and has never authorised or licensed the Respondent to use its trademarks.
33. The Respondent registered the Domain to sell it back to the Complainant in excess of the documented out-of-pocket expenses and/or to block the Complainant from using its mark with the .vip gTLD – see the submissions in relation to bad faith below. Such use of the Domain could not be said to be “bona fide”.
(ii.) Whether Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if Respondent has not acquired trademark or service mark rights.
34. There is no evidence that the Respondent has been commonly known by the name comprised in the Domain.
(iii.) Whether Respondent is making a legitimate non-commercial 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.
35. The main reason for the Respondent’s registration of the Domain was for commercial gain and/or to potentially tarnish the Complainant’s trademark. See the Complainant’s submissions below in relation to paragraph 4b of the Policy.
[c.] The domain name should be considered as having been registered and being used in bad faith. ICANN Rule 3(b)(ix)(3); ICANN Policy 4(a)(iii).
36. The Complainant relies on paragraph 4b (i), (ii) and (iii) and (v) of the Policy.
4b(i) Respondent has registered or has 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.
37. The Respondent registered the Domain to re-sell it to the Complainant via an online auction service, see paragraphs 23-24 above.
4b(ii) 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.
38. The Respondent has had a UDRP complaint decided against him (using his name written in Latin script), see Arkema France v Zheng Chu He Case No D2016-2227 (WIPO, 29 December 2016), which involved the registration of the domain name arkema.vip. The Respondent, in that case, used arguments similar to those in his communications with the Complainant, which were rejected by the panellist. The Respondent’s name in Chinese is translated to Zheng Chu He and the archived Whois of the domain name arkema.vip shows the Respondent’s email address email@example.com, which was used to send emails to the Complainant in this Complaint.
39. The Respondent attempted to distance himself from the above decision by updating his email, telephone and fax numbers as mentioned in paragraph 21 of this Complaint.
40. The Respondent has registered more than 680 domain names most of which are identical or confusingly similar to well-known international trademarks.
41. The Respondent was also reported for scamming activities on rxscammer.com.
42. It is clear from the above table that the Respondent has sought to register domain names that match well-known trademarks for commercial gain.
43. See Texas Instruments Incorporated v. Tom Baert, FA0701000903885 117330 (Nat. Arb. Forum March 14, 2007) “In casu however, because Respondent has clearly been stockpiling domain names that are identical to and incorporate third-party trademarks and combinations of third-party trademarks, the indications are that he is not passively holding the domain name in dispute for any bona fide reasons…In the circumstances, this Panel is convinced by the evidence submitted that Respondent chose the domain name in dispute to prevent Complainant from registering its name on the .mobi domain name.”. This statement holds true for the Respondent’s squatting activities in relation to the Domain and other domain names he has registered.
44. The Respondent is well versed in the field of cybersquatting, also targeting ICANN accredited registrars and online brand protection companies such as MarkMonitor, Ascio and IPMirror.
45. The Respondent is most likely fully aware that a trademark owner would have to spend in the region of $5000 to recover an infringing domain name via the UDRP and a cost saving option would be to rather buy the domain name from the Respondent via auction listing, as the Respondent attempted to do in this instance.
46. A .vip domain name retails for approximately $1 per year with renewals at approximately $9 per year. It is therefore relatively easy for a cybersquatter such as the Respondent to recoup these costs with the sale of a few infringing domain names.
47. There is no apparent reason why the Respondent would have registered in excess of 680 domain names, some of which match well-known trademarks, other than to sell the domain names to trademark holders for a significant profit.
4b(iii.) Whether Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor.
48. The Respondent registered the Domain for the purpose of disrupting the Complainant’s business by preventing the Complainant from registering and using the Domain for its own legitimate business purpose.
49. A third party may assume that the Domain is a premium or elite service operated by the Complainant as the gTLD .vip is the well-known acronym for “Very Important Person”. This confusion could take place if the Respondent set-up a website at the Domain or used it to send out emails with a view to committing fraud targeting the Complainant’s customers and business partners.
50. It is clear from the above that the Respondent had the Complainant and its business in mind when registering and using the Domain. The Domain in this case "is so obviously connected with such a well-known chemical and energy company that its very use by someone with no connection with the brand suggests opportunistic bad faith" (Venuve Clicquot Pnsardin, Maison Fondée en 1772 v. The Polygenix Group Co.Case No D2000-0163 (WIPO, 1 May 2000).
4b(v.) Other factors.
51. The Respondent, has, through his inaction used the Domain:
a. See Nike, Inc. v. Azumano Travel D2000-1598 (WIPO Feb. 17, 2001) “The four criteria set forth in the Policy paragraph 4(b) are nonexclusive. Telstra Corporation Limited v.Nuclear Marshmallows, WIPO Case No. D2000-0003. In addition to these criteria, other factors alone or in combination can support a finding of bad faith.” In the Telstra decision, it was established that registration together with "inaction" and other facts can constitute bad faith use, and the Telstra decision has since been cited for that proposition and followed by subsequent Panels.
b. In World Wrestling Federation Entertainment Inc (WWFE) v. Rooij, WIPO Case No. D2000-0290 (June 20, 2000), the Panel made a finding of bad faith based on the fact that the domain name website had not been developed, stating "the concept of a domain name being used in bad faith is not limited to positive action; inaction is within the concepts".
52. The trademark SASOL is well-known internationally. It is therefore inconceivable that the Respondent independently, without knowledge of the Complainant, created the Domain. It would be difficult to imagine that the Respondent would not have been aware of the trademarks of the Complainant and as such is a strong indication that the Respondent intended to create an association with the Complainant’s trademark.
53. The Domain was registered in a manner that, at the time the registration took place, took unfair advantage of and was unfairly detrimental to the Complainant’s rights.
54. The Complainant’s trademark rights predate the Domain registration by at least 60 years.
55. Use of Entire Mark Without Plausible Good Faith Use – Another factor is the use of Complainant’s entire mark in the Domain, thus making it difficult to infer a legitimate use of the Domain by Respondent. See Nike, Inc. v. Azumano Travel D2000-1598 (WIPO Feb. 17, 2001) “In Cellular One Group v. Paul Brien,D2000-0028 (WIPO March 10, 2000), Complainant filed a WIPO complaint against the Registrant of domain name "cellularonechina.com". The Panel inferred bad faith use of "cellularonechina.com", because the domain name included Complainant’s entire trademark. In light of Cellular One’s trademark registrations and applications, "it is not possible to conceive of a plausible circumstance in which Respondent could legitimately use the domain name." See Telstra Corp. Ltd. v. Nuclear Marshmallows, WIPO Case No. D2000-00037. Respondent’s Domain uses the entirety of Complainant’s trademark, namely the phrase "Nike." No plausible explanation exists as to why Respondent selected the name NIKE as part of the Domains other than to trade on the goodwill of Nike. Despite contact by Nike’s counsel, Respondent has never provided any information to contradict the conclusion that Respondent registered the Domains in order to benefit from the well-known NIKE mark.” The same applies to this complaint, as it is inconceivable that the Respondent intended to operate a genuine business with (or had any other genuine reason to use) the Domain. which comprised a well-known trademark with a company designation used by the Complainant to operate its business.
56. The Complainant contends that the Respondent’s only true interest in the Domain:
a. is to disrupt the Complainant’s business;
b. cause confusion in the mind of people and/or businesses (including the Complainant’s clients and/or potential clients) into believing that the Domain is registered to, operated or authorized by, or otherwise connected with the Complainant;
c. is to maliciously prevent the Complainant from using the Domain for a legitimate business purpose; and
d. to potentially attempt to sell the Domain to the Complainant for an inflated price in excess of the documented out-of-pocket expenses incurred in registering the Domain.
語言 / Language
The Panel adopts the Complainant’s proposal that the Complaint be accepted in its original English, and that the Response be accepted in its original Chinese. This approach fair to both Parties. The Panel’s decision appears below in both Chinese and English.
《统一域名争议解决政策规则》（“规则”）中 15(a) 段规定，陪审团“应基于当事人所提交的陈述及证据，根据争议解决政策、本规则以及可予使用的法律规则和原则裁决争议”。
规则 4(a) 段要求原告必须说明据以提起诉讼要求域名被取消或转让的理由：
要符合统一域名争议解决政策第4 条a 项规定的第1 个条件，投诉人必须证明在提请投诉之时，投诉人在全球某处已享有对有关商标的合法权益。参见Rockefeller & Co. Inc. v. William Foo, D2014-1886 (WIPO December 17, 2014)。此案的证据显示投诉人最早从1964年已享有对“SASOL”的商标的权益。被投诉人使用 “。VIP”作为争议域名后缀，并不能区别投诉人的“SASOL”商标，也絲毫不减少公众对争议域名和投诉人商标之间的混淆。
To satisfy the first element, par. 4(a), of the Policy, the Complainant must prove that, at the time the Complaint was filed, the Claimant enjoyed legal rights in the trademark in any jurisdiction. See Rockefeller & Co. Inc. v. William Foo, D2014-1886 (WIPO December 17, 2014)。 The evidence in these administrative proceedings reflects that Complainant enjoyed statutory rights in the“SASOL”trademark as early as 1964. The Respondent’s addition of the TLD “.VIP”to the Disputed Domain Name provides no differentiation from Complainant’s registered“SASOL”mark and does nothing to lessen the confusing similarity between the domain and Complainant’s registered mark.
因此，投诉人的投诉符合统一域名争议解决政策第4 条a 项规定的第一个条件。
Accordingly, the Complainant’s evidence satisfies the first element of paragraph 4(a) of the Policy.
被投诉人不享有任何对争议域名或其主要部分“SASOL”的合法权益。 因此，投诉人的投诉符合统一域名争议解决政策第4 条a 项规定的第二个条件。
The Respondent enjoys no legal rights or interests in the disputed domain name’s critical second-level “SASOL”. Therefore,the Complainant evidence satisfies the second element of paragraph 4(a) of the Policy.
本陪审团认为，恶意使用域名不限于积极行为，在特定情况下，被投诉人的消极行为也可能构成恶意使用争议域名。Telstra Corporation Limited 诉 Nuclear Marshmallows, WIPO 案号D2000-0003 （认为被投诉人被动持有域名根据各案情况亦可构成恶意，尤其当涉及的商标为知名商标时）； Maxtor Corporation 诉 Shenyang Shixin Co. Ltd, HKIAC 案号 DCN-0300001。在此，被投诉人注册其域名是为阻止投诉人以域名的形式使用其著名的“SASOL”商标，并且被投诉人已形成抄袭摹仿投诉人“SASOL”商标注册域名的模式，构成《政策》第4(b)（ii）条多次将他人享有合法权益的名称或者标志注册为自己的域名，以阻止他人以域名的形式在互联网上使用其享有合法权益的名称或者标志”。
The Panel considers that bad faith use of a domain is not restricted to active use, but under certain circumstances, a respondent’s passive use of a domain may constitute bad faith use. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 （finding Respondent’s passive use of a domain could constituted bad faith under the circumstances of the case, particularly where the relevant trademark was well-known）； Maxtor Corporation v. Shenyang Shixin Co. Ltd, HKIAC Case No. DCN-0300001。Further, that Respondent registered the domain name in order to prevent the owner of the “SASOL”trademark from reflecting the mark in a corresponding domain name and has engaged in a pattern of registering names and marks in which third parties enjoy legal rights as his own domain names under paragraph 4(b)(ii) of the Policy。
本陪审团认为，被投诉人注册域名是为阻止投诉人以域名的形式使用其著名的“SASOL”商标，并且被投诉人已形成抄袭摹仿投诉人“SASOL”商标注册域名的模式，构成《政策》第4(b)(i),4(b)(ii),4(b)(iii) 和第 4(b)(iv)条“多次将他人享有合法权益的名称或者标志注册为自己的域名，以阻止他人以域名的形式在互联网上使用其享有合法权益的名称或者标志”，陪审員也同意，投诉人主张被投诉人注册域名是为了损害投诉人的声誉，破坏投诉人正常的业务活动，或混淆与投诉人之间的区别，误导公众，构成《政策》第4(b)(iv)条。
The Panel finds, pursuant to paragraphs 4(b)(i),4(b)(ii),4(b)(iii) and 4(b)(iv) of the Policy, that the Respondent registered the domain name in order to prevent Complainant, the owner of the “SASOL” trademark from reflecting the mark in a corresponding domain name, and that the evidence shows that the Respondent has engaged in a pattern of such conduct. The Panel also agrees with the Complainant’s assertion that the Respondent registered the Disputed Domain Name with a view to damaging the Complainant’s good will and disrupting the Complainant’s business by creating a likelihood of confusion with the complainant's mark.
The Complainant’s evidence fully establishes that the Respondent registered and used the Disputed Domain Name in bad faith.
通过审查根据 ICANN 办法要求的三方面因素，陪审团决定同意救济。
In accordance its findings under the three elements of the ICANN Policy, the Panel AGREES that the requested relief shall be GRANTED.
因此，兹命令 被告向原告 转让 <sasol.vip> 域名。
Therefore, it is ORDERED that the Respondent shall TRANSFER to the Complainant the <sasol.vip> domain name.
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