WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Julbo v. Lee, Jong-Guk
Case No. D2006-0870
1. The Parties
The Complainant is Julbo of France, represented by CABINET GREFFE, France.
The Respondent is Lee, Jong-Guk of Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name is registered with YesNIC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2006. On July 10, 2006, the Center transmitted by email to YesNIC a request for registrar verification in connection with the domain name at issue. On July 12, 2006, YesNIC 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 notified the Parties that the Complaint would initially be accepted in English, reserving the ultimate decision for the Panel, and allowing the Parties to submit documents in either English or in Korean. 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 July 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August�13,�2006. The Response, written in Korean, was filed with the Center on August 8, 2006.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on August�15,�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 Complainant is Julbo, a French company that has specialized in the manufacturing and marketing of eyewear since 1888. The Complainant began using JULBO as its company name in 1986, and has since obtained trademark registrations in over 50�countries, the earliest dating back to 1989.
The Respondent is an individual, who appears to be the proprietor of Miltek, a business registered in the Republic of Korea on March 16, 2000. The area of the business, as stated in the business registration records, is “electronic telecommunication engineering services, and electronic/telecommunication equipment.” The Respondent registered the disputed domain name on September 5, 1997.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trademarks to which the Complainant has rights. More specifically, the Complainant asserts that it has rights to the trademark JULBO, which has been in use since 1986 and was first registered as a trademark in 1989. The Complainant now has trademark registrations in over 50 different countries. The Complainant accordingly asserts that the disputed domain name is identical to the Complainant’s trademark JULBO.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name. More specifically, the Complainant asserts that, to the best of its knowledge, the Respondent has never used the disputed domain name since it was registered in 1997. The Complainant further asserts that there is no indication that the Respondent is commonly known by the disputed domain name.
Finally, the Complainant contends that the domain name was registered in bad faith. First, the Complainant asserts that its trademark JULBO is well-known throughout the world including the Republic of Korea, the country in which the Respondent resides, and so the Respondent must have known of the Complainant’s trademark when the Respondent obtained the disputed domain name in 1997. Further, the Complainant asserts that the Respondent attempted to sell the domain name.
B. Respondent
The Respondent concedes that the disputed domain name is identical to the Complainant’s JULBO trademark. However, the Respondent asserts that the products and services he planned to offer via the disputed domain name are dissimilar to those of the Complainant.
With respect to his rights and legitimate interests, as well as the issue of bad faith, the Respondent denies the Complainant’s assertions and offers his explanation. The Respondent asserts that he was unaware of the Complainant’s trademark rights to JULBO when he obtained the subject registration. He explains that he conceived the term JULBO as a combination of the first three letters of the month “July” combined with the first two letters of “Boracay”, a resort island in the Philippines. The Respondent explains that he had planned to offer products and services relating to conversion of camcorder footage into various other formats.
The Respondent also submitted pictures and receipts of items that he claims to have purchased in preparation of the business described above. These items include video transfer and conversion equipment (receipt dated May 13, 2000), a VCR (receipt dated May 1, 2000), a video editing controller (receipted dated July 11, 2000), a computer monitor (no receipt submitted). The Respondent also asserts that he actually put up content via the disputed domain name around March of 2002 and submitted three pages that he printed on August 7, 2006 from files saved on his hard drive, which are identical to the content that was displayed via the disputed domain name in 2002. The Respondent asserts that while he abandoned his planned business within a year of its start, he was considering resuming it at some point later, which is why he continued to hold onto the disputed domain name.
6. Discussion and Findings
Language of the Proceedings
The default language of the proceedings is Korean, as the registrar has confirmed that the registration agreement was in Korean. Upon receiving notice from the Center regarding the default language, the Complainant submitted arguments as to why the proceedings should proceed in English. The Center proceeded, and advised the Parties that the Center would accept the Response in either Korean or English. The Parties were further advised that the ultimate decision regarding the language of the proceedings would be within the discretion of the Panel, and that the Panel may request translations from either Party. The notice provided by the Center to the Parties was in both English and in Korean to accommodate the situations of the Parties. Respondent subsequently submitted his Response in Korean.
The Complainant has stated that it cannot communicate in the Korean language. On the other hand, it appears that the Respondent has sufficient ability to communicate in English. First, it is clear from the Respondent’s response that he was able to fully comprehend and respond to the points and assertions made in the Complaint, which was entirely in English. Further, there is a history of communication between the Complainant and the Respondent, all in English.
In view of the points noted above, and the fact that the Parties are French and Korean, the Panel determines that it would be more appropriate to render the decision in English, which both parties have an ability to understand sufficiently. Also, this Panel notes that there is no prejudice to the Parties, as they have been permitted to submit their arguments in their preferred languages.
A. Identical or Confusingly Similar
The Complainant submitted evidence of trademark registrations in various countries for the mark JULBO, the earliest dating back to 1989. In this regard, there is no room for disagreement. The disputed domain name is identical to the Complainant’s prior trademark rights to JULBO.
The Respondent, while conceding that the domain name is identical, argued that his intended products and services (briefly offered in 2002 according to the Respondent) are dissimilar to those of the Complainant (i.e. sunglasses, eyewear, etc.). While such a point may be relevant in determining whether or not trademark infringement has been committed, such a comparison of the goods and services is not relevant under Paragraph 4(a)(i) of the Policy.
For the reasons stated above, the Panel finds that the requirements of Paragraph 4(a)(i) of the Policy have been established.
B. Rights or Legitimate Interests
In reply to the Complainant’s assertions on this point, the Respondent has offered a number of explanations and arguments. First, the Respondent asserts that he actually used the domain name in connection with a bona fide offering of goods and services. More specifically, the Respondent claims that he began doing so around March of 2002, but abandoned his plans within a year. The Respondent also submitted three pages of what constituted the content of his web site back in 2002, printed from files remaining on his computer hard drive.
Unfortunately, it is difficult to accept these assertions and evidence as sufficiently reliable and credible. A simple printout of a hard drive file, without other corroborating evidence to support its reliability and the relevant dates, must be dismissed from consideration. To give weight to such easily created and uncorroborated evidence would be to invite abusive practices that would undermine these proceedings. For example, were there no customers or products? If there had been, surely there would have been dated receipts, delivery records, etc.
Also, another point should be made. The Respondent’s arguments and evidence are offered as support for the defense found in Paragraph 4(c)(i) of the Policy:
“before any notice to you of the dispute, your use of, or demonstrable preparations to us, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services.”
Another problem in the Respondent’s assertions is that he was served with a warning letter from the Complainant’s attorneys (dated January 10, 2002) in connection with the disputed domain name. By his own statements, he put up the contents about two months after the warning letter. Paragraph 4(c)(i) requires evidence from “before any notice … of the dispute.”
The Respondent also submitted pictures of equipment as well receipts therefore, which he asserts to show preparations for his planned business. However, there are problems with this evidence as well. First, the equipment that the Respondent allegedly purchased in preparation for his planned business are common consumer electronic goods (i.e. computer monitor, VCR, personal video editing devices, etc.) that could just as easily been purchased for personal use. Further, all the receipts submitted by the Respondent show purchases in 2000, approximately 2 years before the Respondent claimed to have actually offered products and services via the disputed domain name. In fact, all the purchase dates appear to correspond more closely and logically to the preparation of the Respondent’s Miltek business (established on March 15, 2000).
For the reasons given above, the Panel does not find the assertions and evidence submitted by the Respondent persuasive or sufficiently corroborated. Accordingly, the Panel finds that the requirements of Paragraph 4(a)(ii) of the Policy have been established.
C. Registered and Used in Bad Faith
The Complainant’s trademark JULBO is a coined term, which the Complainant has explained was created as a contraction of its founder’s name “Jules Baud”. The term JULBO has no particular meaning in English or in Korean. Based on the evidence submitted by the Complainant, it has achieved a very high level of success and recognition in many parts of the world.
In response, the Respondent explains that he independently created the term JULBO combining the first three letters of “July” with the first two letters of “Boracay”, with no further comments as to why these two terms have any significance to him or his alleged business plans for the domain name. To say the least, the Panel finds this explanation unconvincing. In fact, the disputed domain name was registered in September of 1997, not even in July.
Further, the Respondent replied on January 10, 2003, to an email from the Complainant stating that he will sell the domain name for a “charge”, and requesting price proposal.
For the reasons stated above, the Panel finds that the requirements of Paragraph 4(a)(iii) of the Policy have been established.
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 be transferred to the Complainant.
Ik-Hyun Seo
Sole Panelist
Dated: September 11, 2006
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