WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Sunrider Corporation dba Sunrider International v. Kim Hyeonsuk Case No. D2008-1663 1. The Parties
The Complainant is The Sunrider Corporation dba Sunrider International of Torrance, California, United States of America, represented by Ladas & Parry LLP of United States of America.
The Respondent is Kim Hyeonsuk of Pohang, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2008. On November 3, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On November 3, 2008, eNom transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 5, 2008. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 November 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 27, 2008.
The Center appointed Tobias Zuberbühler as the Sole Panelist in this matter on December 12, 2008. 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 a multinational privately held corporation organized and existing under the laws of the state of Utah, United States of America (“U.S.”) since 1982. Inter alia, the Complainant manufactures and sells products in the field of herbal foods and beverages, herbal concentrates, dietary supplements, weight management products, skincare products, cosmetics and household products.
The Complainant is the owner of 9 U.S. and more than 750 foreign trademark registrations and pending applications for SUNRIDER and other trademarks incorporating the SUNRIDER mark in China, Hong Kong, SAR of China, Japan, Vietnam, Philippines, Canada, United Mexican States, Panama, India, Republic of Korea, Uruguay, the European Union, and other countries. In the Republic of Korea, the Complainant has 23 valid trademark registrations. The disputed domain name was registered in 2003, well after the Complainant's first use of the mark SUNRIDER in commerce. Moreover, the Complainant is the registered owner of 118 ccTLD and gTLD domain names incorporating the trademark.
The Respondent registered the disputed domain name on August 1, 2003. The website connected with the disputed domain name lists certain financial terms. By clicking these terms the user finds a list with so called sponsored links to these terms. 5. Parties' Contentions A. Complainant
The Complainant objects to the use of the disputed domain name by the Respondent and bases its Complaint on the following grounds:
1. The disputed domain name at issue is confusingly similar with the Complainant's trademarks. The addition of the generic term “korea” to the disputed domain name does not reduce the confusing similarity.
2. The Respondent makes no legitimate non-commercial or fair use of the disputed domain name. The Complainant has no relationship with the Respondent and has never authorized the Respondent to use the Complainant's marks as a domain name. The Respondent does not conduct any legitimate commercial or non-commercial business activity under the disputed domain name.
3. The Respondent registered and uses the disputed domain name with the purpose to divert customers to its own website for commercial gain. Accordingly, the disputed domain name was registered and is being used in bad faith.
The Complainant requests the Panel to issue a decision that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent's rights or legitimate interests in the disputed domain name.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith. A. Identical or Confusingly Similar
The disputed domain name is identical or confusingly similar to the Complainant's registered trademarks. A non-distinctive addition of the geographic term “korea” to the widely known trademark SUNRIDER does not sufficiently differentiate the disputed domain name from the Complainant's trademarks (cf. eBay Inc. v. Sunho Hong,WIPO Case No. D2000-1633).
The Complainant has thus fulfilled the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
There is little indication before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Panel also refers to the use of the disputed domain name as explained below under the third limb of the Policy.
The Complainant, having made a prima facie case which remains unrebutted, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Considering the factual background of this case as set forth under section 4 above, it is apparent that the Respondent intends to attract Internet users to its website for commercial gain by creating confusion about the source, sponsorship, affiliation, or endorsement of its website.
Given the Respondent's addresses as indicated in the registrar's publicly available WhoIs and the existence of the Complainant's widely known trademarks predating the registration of the disputed domain name, it may also reasonably be inferred that the Respondent likely was not unaware of the Complainant's trademarks and business when it registered the disputed domain name.
The Panel finds that the Respondent's conduct constitutes bad faith registration and use, thus fulfilling paragraph 4(a)(iii) of the Policy. 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.
Tobias Zuberbühler
Sole Panelist
Date: December 26, 2008
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