WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Yanmar Co., Ltd. v. H. J. A. Puts
Case No. D2002-0703
1. The Parties
The Complainant is Yanmar Co., Ltd. of 62, Chayamachi, Kita-ku, Osaka, Japan.
The Respondent is H.J.A. Puts, Postbus 93118, 1090 BC Amsterdam, the Netherlands.
2. The Domain Name and Registrar
The disputed domain name is .
The Registrar is Intercosmos Media Group, Inc. d/b/a DirectNic, 650 Poydras Street, Suite 2311, New Orleans, Louisiana 70130, United States of America.
3. Procedural History
The Complaint was filed electronically on July 25, 2002; a hard copy was received on July 30, 2002. An e-mail was sent on July 25, 2002, from the Center to the Complainant acknowledging receipt of the Complaint. On July 25, 2002, the Center requested and received Registrar Verification from the concerned Registrar, Intercosmos Media Group, Inc. d/b/a DirectNIC. On July 30, 2002, the WIPO Arbitration and Mediation Center (the "Center") completed the formal requirements compliance checklist, and on July 31, 2002, issued a Notification of Complaint and Commencement of Administrative Proceeding. This Panel concurs that the Complaint meets the formal requirements, and that Respondent was properly notified of the Complaint. However, Respondent did not file a Response. On August 23, 2002, the Center issued a Notification of Respondent Default. This Panelist was asked to serve and submitted a Statement of Acceptance and Declaration of Impartiality and Independence. On September 3, 2002, the Center issued its Notification of Appointment of Administrative Panel and Projected Decision Date, that this Panelist was appointed, and projected the date for decision as September 17, 2002. The date originally scheduled for the issuance of the Panel�s decision was extended to September 24, 2002. There have been no other submissions. The language of this proceeding is English.
4. Factual Background
The Complainant, Yanmar Co. Ltd., was established in 1912. Its primary business is the production of engines for the marine and industrial environment as well as construction and agriculture. The company has a worldwide network of technical centers, production plants and sales centers. Yanmar products are sold worldwide. It�s sales volume exceeds 2 billion USD. The Complainant has provided extensive documentation attesting to registration of worldwide trademarks as well as domain names held by it to the Panel.
5. Parties� Contentions
A. Complainant
The Complainant states and alleges, inter alia, that:
The Respondent did not use, or made demonstrable preparations to use, the Domain Name in connections with a bona fide offering of goods and services. The Respondent is not offering goods or services under the Domain Name at all, nor made any demonstrable preparations to use the Domain Name. (Paragraph 17)
The Respondent has not been and is not commonly known by the Domain Name. The Respondent has no company and uses no company name that involves the word YANMAR. (Paragraph 19)
The Respondent is not 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 YANMAR. (Paragraph 20)
It is most likely that the Domain Name is registered or acquired by the Respondent primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, who is the owner of the trademark YANMAR, or to a competitor of the Complainant for valuable consideration in excess of the domain name registrant�s out of pocket cost. (Paragraph 23)
The trademark registrations are prior to the Respondent�s registration of the Domain Name. If the Respondent had conducted an initial trademark search, he would have discovered the YANMAR trademark. (Paragraph 25)
The Respondent has registered the Domain Name in order to prevent the Complainant from reflecting its trademark in a corresponding domain name. (Paragraph 26)
B. Respondent
The Respondent has failed to file any submissions to the Panel.
6. Discussion and Findings
i) Identity or Confusing Similarity
Under Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Complainant has the burden of proving each of the following: (i) that the domain name is identical or confusingly similar to the Complainant�s mark; (ii) that the Respondent has no rights or legitimate interests in the domain name; and (iii) that the Respondent registered and is using the domain name in bad faith. This is the case even where the Respondent has not filed a submission with the Panel. The panel in Cortefiel, S.A. v. Miguel Garcia Quintas, WIPO Case No. D2000-0140 (April 24, 2000), notes that under the Policy, even if the Respondent is in default, "the complainant must prove that each of these three elements are present."
With respect to Paragraph 4(a)(i), in its submission, the Complainant has stated that the Domain Name is identical to the trademark YANMAR. It has provided substantial evidence of both domain names and trademarks owned or controlled by it. In the absence of contrary evidence submitted by the Respondent, the Panel is satisfied that the Complainant has met the threshold test required by 4(a)(i) of the Policy. In addition, Adaptive Molecular Technologies, Inc. v. Priscilla Woodward & Charles R. Thorton, d/b/a Machines & More, WIPO Case No. D2000-0006 (February 28, 2000), held that a domain name is "undoubtedly" confusingly similar because it incorporated the "primary, distinctive element of both of Complainant's trademarks."
(ii) Legitimate Interest
In regard to the test set forth in 4(a)(ii), the Complainant has alleged that the Respondent is not using the Domain Name for any legitimate use except for the possibility of making it available for sale. It has provided evidence to that effect. Again, in the absence of a contrary submission by the Respondent, the Panel finds that the Respondent has no legitimate interest or rights to the Domain Name.
iii) Bad Faith
In regard to the third threshold test contained in section 4(a)(iii) of the Policy, the circumstances require that the Complainant establish that the Domain Name has been registered and, is being used in bad faith. The Complainant puts forth the fact that the Respondent is offering the Domain Name for sale as indicia of its bad faith (there is precedent for such an inference). In addition it alleges that the Respondent has registered the Domain Name in order to prevent the Complainant from reflecting its trademark in a corresponding Domain Name. The Complainant suggests that had the Respondent conducted an initial trademark search it would have discovered the YANMAR trademark. The Complainant puts forward Young Genius Software AB v. MWD, James Vargas, WIPO Case No. D2000-0591 (August 7, 2000), as an authority.
In the absence of evidence to the contrary, from the Respondent, the Panel concurs with the Complainant�s argument and finds that the Complainant has met the threshold test in section 4(a)(iii).
It is not necessary for the Panel to comment on the allegation that the Respondent has previously engaged in a pattern of similar conduct in order to reach the conclusion it has, however, any benefit of the doubt given to this or other submissions made by the Complainant must, in the circumstances, be given to the Complainant in the absence of evidence or contrary assertions by the Respondent. Indeed, as stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy Antiques, WIPO Case No. D2000-0004 (February 16, 2000), "Respondent's failure to present any such evidence or to deny Complainant's allegations allows an inference that the evidence would not have been favorable to Respondent."
7. Decision
Given the above findings by the Panel and keeping in mind the threshold tests set out Paragraph 4(a) and 4(b) of the Policy, as well as the requirement (as set out in Paragraph 15 of the Rules) that the Panel must decide a Complaint on the basis of the statements and documents submitted, the Panel's decision is that the domain name be transferred to the Complainant.
Haig Oghigian
Sole Panelist
Dated: September 20, 2002
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